Filed Pursuant to Rule 424(b)(5)
Registration Statement No. 333-259317
PROSPECTUS SUPPLEMENT
(To Prospectus dated September 17, 2021)
Up to $25,000,000 of Shares
Common Stock
We have entered into an Equity Distribution Agreement, or sales
agreement, with William Blair & Company, L.L.C., or William
Blair, and Craig-Hallum Capital Group LLC, or Craig-Hallum,
relating to shares of our common stock offered by this prospectus
supplement and the accompanying prospectus. In accordance with the
terms of the sales agreement, we may offer and sell shares of our
common stock having an aggregate offering price of up to
$25,000,000 from time to time through William Blair and
Craig-Hallum, each an agent and, collectively, agents.
Our common stock is listed on the Nasdaq Capital Market under the
symbol “AEHR.” On February 6, 2023, the last reported sale price of
our common stock on the Nasdaq Capital Market was $35.81 per
share.
Sales of our common stock, if any, under this prospectus supplement
and the accompanying prospectus may be made in sales deemed to be
“at-the-market” equity offerings as defined in Rule 415 promulgated
under the Securities Act of 1933, as amended, or the Securities
Act, including sales made directly on or through the Nasdaq Capital
Market, the existing trading market for our common stock, sales
made to or through a market maker other than on an exchange or
otherwise, in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market
prices, and/or any other method permitted by law, including in
privately negotiated transactions. William Blair and Craig-Hallum
will act as sales agents on a best efforts basis and use
commercially reasonable efforts to sell on our behalf all of the
shares of common stock requested to be sold by us, consistent with
their normal trading and sales practices, on mutually agreed terms
between William Blair, Craig-Hallum and us. There is no arrangement
for funds to be received in any escrow, trust or similar
arrangement.
William Blair and Craig-Hallum will be entitled to compensation at
a commission rate of 2.75% of the gross sales price per share
sold. In connection with the sale of our common stock on our
behalf, William Blair and Craig-Hallum will be deemed to be
“underwriters” within the meaning of the Securities Act, and the
compensation of William Blair and Craig-Hallum will be deemed to be
underwriting commissions or discounts.
Investing in our common stock involves a high degree of
risk. Before making an investment decision, please read the
information under the heading “Risk Factors” beginning on page
S-5 of this prospectus supplement and in the
documents incorporated by reference into this prospectus supplement
and the accompanying prospectus.
Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
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William Blair
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Craig-Hallum
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The date of this prospectus supplement is February 7, 2023.
TABLE
OF CONTENTS
Prospectus Supplement
Prospectus
ABOUT THIS
PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus are part
of a registration statement that we have filed with the U.S.
Securities and Exchange Commission, or the SEC, utilizing a “shelf”
registration process. By using a shelf registration statement, we
may offer shares of our common stock having an aggregate offering
price of up to $25,000,000 from time to time under this prospectus
supplement and the accompanying prospectus at prices and on terms
to be determined by market conditions at the time of offering.
We provide information to you about this offering of shares of our
common stock in two separate documents that are bound together: (1)
this prospectus supplement, which describes the specific details
regarding this offering; and (2) the accompanying base prospectus,
which provides general information, some of which may not apply to
this offering. Generally, when we refer to this “prospectus,” we
are referring to both documents combined. If information in this
prospectus supplement is inconsistent with the accompanying base
prospectus, you should rely on this prospectus supplement. However,
if any statement in one of these documents is inconsistent with a
statement in another document having a later date—for example, a
document incorporated by reference in this prospectus
supplement—the statement in the document having the later date
modifies or supersedes the earlier statement as our business,
financial condition, results of operations and prospects may have
changed since the earlier dates.
You should rely only on the information contained in, or
incorporated by reference into, this prospectus supplement, the
accompanying prospectus and any free writing prospectus that we may
authorize for use in connection with this offering. We have not,
and William Blair and Craig-Hallum, have not authorized any other
person to provide you with different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. We are not, and William Blair and Craig-Hallum are
not, making an offer to sell or soliciting an offer to buy our
securities in any jurisdiction where an offer or solicitation is
not authorized or in which the person making that offer or
solicitation is not qualified to do so or to anyone to whom it is
unlawful to make an offer or solicitation. You should assume that
the information appearing in this prospectus supplement, the
accompanying prospectus, the documents incorporated by reference
into this prospectus supplement and the accompanying prospectus,
and any free writing prospectus that we may authorize for use in
connection with this offering is accurate only as of the date of
those respective documents. Our business, financial condition,
results of operations and prospects may have changed since those
dates. You should read this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus, and any free
writing prospectus that we may authorize for use in connection with
this offering in their entirety before making an investment
decision. You should also read and consider the information in the
documents to which we have referred you in the section of this
prospectus supplement entitled “Where You Can Find More
Information; Incorporation by Reference.”
We are offering to sell, and seeking offers to buy, shares of
common stock only in jurisdictions where offers and sales are
permitted. The distribution of this prospectus supplement and the
accompanying prospectus and the offering of the common stock in
certain jurisdictions may be restricted by law. Persons outside the
United States who come into possession of this prospectus
supplement and the accompanying prospectus must inform themselves
about, and observe any restrictions relating to, the offering of
the common stock and the distribution of this prospectus supplement
and the accompanying prospectus outside the United States. This
prospectus supplement and the accompanying prospectus do not
constitute, and may not be used in connection with, an offer to
sell, or a solicitation of an offer to buy, any securities offered
by this prospectus supplement and the accompanying prospectus by
any person in any jurisdiction in which it is unlawful for such
person to make such an offer or solicitation.
When we refer to “AEHR,” “Aehr Test,” “we,” “our,” “us” and the
“Company” in this prospectus supplement and the accompanying
prospectus, we mean Aehr Test Systems and its consolidated
subsidiaries, unless otherwise specified. When we refer to “you,”
we mean the holders of common stock of the Company.
Aehr Test Systems™, AEHR™ and our logo are some of our trademarks
used in this prospectus supplement and the accompanying prospectus.
This prospectus supplement and the accompanying prospectus also
includes trademarks, tradenames and service marks that are the
property of other organizations. Solely for convenience, our
trademarks and tradenames referred to in this prospectus supplement
and the accompanying prospectus appear without the ® or ™ symbols,
but those references are not intended to indicate, in any way, that
we will not assert, to the fullest extent under applicable law, our
rights, or the right of the applicable licensor to these trademarks
and tradenames.
MARKET,
INDUSTRY AND OTHER DATA
This prospectus supplement, including the information incorporated
by reference, contains estimates, projections and other information
concerning our industry, our business, and the markets for
semiconductor testing, as well as data regarding market research,
estimates and forecasts prepared by our management. Information
that is based on estimates, forecasts, projections, market research
or similar methodologies is inherently subject to uncertainties and
actual events or circumstances may differ materially from events
and circumstances that are assumed in this information. Unless
otherwise expressly stated, we obtained this industry, business,
market and other data from reports, research surveys, studies and
similar data prepared by market research firms and other third
parties, industry, medical and general publications, government
data and similar sources. In some cases, we do not expressly refer
to the sources from which this data is derived. In that regard,
when we refer to one or more sources of this type of data in any
paragraph, you should assume that other data of this type appearing
in the same paragraph is derived from the same sources, unless
otherwise expressly stated or the context otherwise requires.
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PROSPECTUS SUPPLEMENT
SUMMARY
This summary does not contain all of the information you should
consider before buying our common stock. You should read the entire
prospectus supplement, the accompanying prospectus and the
documents incorporated by reference in this prospectus supplement
and the accompanying prospectus carefully, especially the “Risk
Factors” section beginning on page S-5 and in our most
recent Annual Report on Form 10-K filed with the SEC, which is
incorporated by reference into this prospectus supplement and the
accompanying prospectus, before deciding to invest in our common
stock.
Unless the context requires otherwise, references in this
prospectus supplement to “AEHR,” “Aehr Test,” “we,” “us” and “our”
refer to Aehr Test Systems, and our consolidated
subsidiaries.
Overview
Aehr Test develops, manufactures and supplies systems that are
designed to reduce the cost of testing and performs reliability
screening and stress testing, burn-in or cycling, of homogeneous
and heterogeneous logic and memory semiconductor integrated
circuits, sensors, power and optical devices. These solutions can
be used to simultaneously perform parallel testing and burn-in of
packaged devices, singulated bare die or semiconductor devices
while still in wafer form.
Our semiconductor test and reliability qualification solutions
address multiple test and burn-in segments including silicon
carbide devices for electric vehicles, silicon photonics markets
that include data center infrastructure and worldwide 5G
infrastructure, 2D/3D sensor markets related to consumer
electronics and automotive applications, and the data storage and
memory markets.
Aehr integrated circuit assembles its products from
components and parts manufactured by others, including
environmental chambers, power supplies, metal fabrications, printed
circuit assemblies, integrated circuits, burn-in sockets,
high-density interconnects, wafer contactors and interconnect
substrates. Final assembly and testing are performed at the
Company’s principal manufacturing facility located in Fremont,
California. The Company has sales and service operations in the
United States, Philippines and Taiwan, dedicated service resources
in Germany, China and South Korea, and has established a network of
distributors and sales representatives in certain key parts of the
world.
Corporate Information
We filed our certificate of incorporation with the Secretary of
State of California on May 25, 1977. Our principal executive
offices are located at 400 Kato Terrace, Fremont, California 94539
and our telephone number is (510) 623-9400. Our website address is
www.aehr.com. The information on, or that can be accessed through,
our website is not part of this prospectus supplement. We have
included our website address as an inactive textual reference
only.
AEHR, Aehr Test and the AEHR Test Systems logo are our trademarks.
Each of the other trademarks, trade names or service marks
appearing in this prospectus supplement belongs to its respective
holder.
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Common stock offered by us
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Shares of our common stock having an aggregate offering price of up
to $25,000,000.
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Common stock to be outstanding after this offering
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Up
to 28,429,592 shares (as more fully described in the notes
following this table), assuming sales of 698,129 shares of our
common stock in this offering at an offering price of $35.81 per
share, which was the last reported sale price of our common stock
on the Nasdaq Capital Market on February 6, 2023. The actual number
of shares issued will vary depending on the sales price under this
offering.
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Manner of offering
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“At-the-market” offering that may be made from time to time through
our sales agents, William Blair and Craig-Hallum. See “Plan of
Distribution” on page S-9.
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Use of Proceeds
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We
intend to use the net proceeds from this offering, if any, for
general corporate purposes, which may include, among other things,
increasing our working capital and inventory, funding research and
development, commercial activities, and capital expenditures. See
“Use of Proceeds” on page S-7.
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Risk Factors
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You should read the “Risk Factors” section of this prospectus
supplement and in the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus for a
discussion of factors to consider before deciding to purchase
shares of our common stock.
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Symbol on the Nasdaq Capital Market
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“AEHR”
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The number of shares of common stock shown above to be outstanding
after this offering is based on 27,731,463 shares outstanding as of
November 30, 2022, and excludes, in each case as of November 30,
2022:
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1,428,250 shares of common stock issuable upon the exercise of
outstanding stock options having a weighted-average exercise price
of $3.23 per share;
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393,893 shares of common stock issuable upon vesting of outstanding
restricted stock units;
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1,434,064 shares of common stock reserved for issuance pursuant to
future awards under our 2016 Equity Incentive Plan, as well as any
automatic increases in the number of shares of our common stock
reserved for future issuance under this plan; and
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499,178 shares of common stock reserved for future issuance under
our Amended and Restated 2006 Employee Stock Purchase Plan, as well
as any automatic increases in the number of shares of our common
stock reserved for future issuance under this plan.
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Unless otherwise stated, all information contained in this
prospectus supplement reflects an assumed public offering price of
$35.81 per share, which was the last reported sale price of our
common stock on the Nasdaq Capital Market on February 6, 2023.
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RISK
FACTORS
You should consider carefully the risks described below and
discussed under the section captioned “Risk Factors” contained in
our Annual Report on Form 10-K for the year ended May 31,
2022, as updated by our subsequent filings under the Securities
Exchange Act of 1934, as amended, or the Exchange Act, which is
incorporated by reference in this prospectus supplement in its
entirety, together with other information in this prospectus
supplement, the accompanying prospectus, and the information and
documents incorporated by reference in this prospectus supplement
and the accompanying prospectus, and any free writing prospectus
that we have authorized for use in connection with this offering
before you make a decision to invest in our common stock. If any of
the following events actually occur, our business, operating
results, prospects or financial condition could be materially and
adversely affected. This could cause the trading price of our
common stock to decline and you may lose all or part of your
investment. The risks described below are not the only ones that we
face. Additional risks not presently known to us or that we
currently deem immaterial may also affect our business
operations.
Risks Relating to this Offering.
Our management team may invest or spend the proceeds of
this offering in ways with which you may not agree or in ways which
may not yield a significant return.
Our management will have broad discretion over the use of proceeds
from this offering. The net proceeds from this offering will be
used for general corporate purposes, which may include, among other
things, increasing our working capital and inventory, funding
research and development, commercial activities, and capital
expenditures. Our management will have considerable discretion in
the application of the net proceeds, and you will not have the
opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. The net proceeds may be
used for corporate purposes that do not increase our operating
results or enhance the value of our common stock.
You may experience immediate and substantial dilution
in the net tangible book value per share of the common stock you
purchase.
The price per share of our common stock being offered may be higher
than the net tangible book value per share of our common stock
outstanding prior to this offering. Assuming that an aggregate
of 698,129 shares are sold at a price of $35.81 per
share, the last reported sale price of our common stock on the
Nasdaq Capital Market on February 6, 2023, for aggregate proceeds
of $25,000,000 in this offering, and after deducting commissions
and estimated aggregate offering expenses payable by us, you will
suffer immediate and substantial dilution of $32.99 per share,
representing the difference between the as adjusted net tangible
book value per share of our common stock as of November 30, 2022
after giving effect to this offering and the assumed offering
price. See the section entitled “Dilution” below for a more
detailed discussion of the dilution you will incur if you purchase
common stock in this offering.
You may experience future dilution as a result of
future equity offerings.
In order to raise additional capital, we may in the future offer
additional shares of our common stock or other securities
convertible into or exchangeable for our common stock. We cannot
assure you that we will be able to sell shares or other securities
in any other offering at a price per share that is equal to or
greater than the price per share paid by investors in this
offering, and investors purchasing shares or other securities in
the future could have rights superior to existing stockholders. The
price per share at which we sell additional shares of our common
stock or other securities convertible into or exchangeable for our
common stock in future transactions may be higher or lower than the
price per share in this offering. As of November 30, 2022,
approximately 3,755,385 shares of common stock that are either
subject to outstanding options, issuable upon vesting of
outstanding restricted stock units, reserved for future issuance
under our equity incentive plans or subject to outstanding warrants
are eligible for sale in the public market to the extent permitted
by the provisions of various vesting schedules and Rule 144 and
Rule 701 under the Securities Act.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, the
documents incorporated by reference and any free writing prospectus
that we have authorized for use in connection with this offering
contain forward-looking statements that involve risks and
uncertainties. All statements other than statements of historical
facts contained in this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference and any free
writing prospectus that we have authorized for use in connection
with this offering are forward-looking statements. In some cases,
you can identify forward-looking statements by terminology such as
“may,” “could,” “will,” “would,” “should,” “expect,” “plan,”
“anticipate,” “believe,” “estimate,” “intend,” “predict,” “seek,”
“contemplate,” “potential” or “continue” or the negative of these
terms or other comparable terminology. These forward-looking
statements include, but are not limited to, statements about:
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our future research and development programs;
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the implementation of our business model, strategic plans for our
business, product candidates and technology;
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the scope of protection we are able to establish and maintain for
intellectual property rights covering our product candidates and
technology;
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estimates of our expenses, future revenues, capital requirements
and our needs for additional financing;
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our use of proceeds from this offering;
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our financial performance; and
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developments relating to our competitors and our industry.
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Any forward-looking statements in this prospectus supplement, the
accompanying prospectus, the documents incorporated by reference
and any free writing prospectus that we have authorized for use in
connection with this offering reflect our current views with
respect to future events or to our future financial performance and
involve known and unknown risks, uncertainties and other factors
that may cause our actual results, performance or achievements to
be materially different from any future results, performance or
achievements expressed or implied by these forward-looking
statements. Factors that may cause actual results to differ
materially from current expectations include, among other things,
those listed under “Risk Factors” and elsewhere in this prospectus
supplement, the accompanying prospectus, the documents incorporated
by reference and any free writing prospectus that we have
authorized for use in connection with this offering. Given these
risks and uncertainties, you should not place undue reliance on
these forward-looking statements. Except as required by law, we
assume no obligation to update or revise these forward-looking
statements for any reason, even if new information becomes
available in the future.
USE OF
PROCEEDS
The amount of proceeds from this offering will depend upon the
number of shares of our common stock sold and the market price at
which they are sold. There can be no assurance that we will be able
to sell any shares under or fully utilize the sales agreement with
William Blair and Craig-Hallum as a source of financing. We intend
to use the net proceeds, if any, from this offering for general
corporate purposes, which may include, among other things,
increasing our working capital and inventory, funding research and
development, commercial activities and capital expenditures.
The amounts and timing of our actual expenditures will depend on
numerous factors as well as the amount of cash used in our
operations. We therefore cannot estimate with certainty the amount
of net proceeds to be used for the purposes described above. We may
find it necessary or advisable to use the net proceeds for other
purposes, and we will have broad discretion in the application of
the net proceeds. Pending the uses described above, we plan to
invest the net proceeds from this offering in short-term,
investment-grade, interest-bearing securities.
DILUTION
Our net tangible book value as of November 30, 2022 was
approximately $56.1 million, or $2.02 per share. Net tangible book
value per share is determined by dividing our total tangible
assets, less total liabilities, by the number of shares of our
common stock outstanding as of November 30, 2022. Dilution in net
tangible book value per share represents the difference between the
amount per share paid by purchasers of shares of common stock in
this offering and the as adjusted net tangible book value per share
of our common stock immediately after giving effect to this
offering.
After giving effect to the sale of our common stock in the
aggregate amount of $25.0 million in this offering at an assumed
offering price of $35.81, the last reported sale price of our
common stock on the Nasdaq Capital Market on February 6, 2023, and
after deducting commissions and estimated aggregate offering
expenses payable by us, our as adjusted net tangible book value as
of November 30, 2022 would have been approximately $80.2 million,
or $2.82 per share. This represents an immediate increase in net
tangible book value of $0.80 per share to existing stockholders and
immediate dilution in net tangible book value of $32.99 per share
to new investors purchasing our common stock in this offering. The
following table illustrates this dilution on a per share basis:
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Assumed public offering price per share
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35.81 |
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Net tangible book value per share as of November 30, 2022
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2.02
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Increase per share attributable to new investors
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0.80 |
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As
adjusted net tangible book value per share after this offering
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2.82 |
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Dilution per share to new investors
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32.99 |
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The shares sold in this offering, if any, will be sold from time to
time at various prices. An increase of $1.00 per share in the price
at which the shares are sold from the assumed offering price of
$35.81 per share shown in the table above, assuming all of our
common stock in the aggregate amount of $25.0 million is sold at
that price, would increase our as adjusted net tangible book value
per share after the offering to $2.82 per share and would increase
the dilution in net tangible book value per share to new investors
to $33.99 per share, after deducting commissions and estimated
aggregate offering expenses payable by us. A decrease of $1.00 per
share in the price at which the shares are sold from the assumed
offering price of $35.81 per share shown in the table above,
assuming all of our common stock in the aggregate amount of $25.0
million is sold at that pric, would increase our as adjusted net
tangible book value per share after the offering to $2.82 per share
and would decrease the dilution in net tangible book value per
share to new investors to $31.99 per share, after deducting
commissions and estimated aggregate offering expenses payable by
us. This information is supplied for illustrative purposes
only.
To the extent that outstanding options or warrants are exercised or
outstanding restricted stock units vest, investors purchasing our
common stock in this offering will experience further dilution. In
addition, we may choose to raise additional capital due to market
conditions or strategic considerations even if we believe we have
sufficient funds for our current or future operating plans. To the
extent that we raise additional capital through the sale of equity
or convertible debt securities, the issuance of these securities
could result in further dilution to our stockholders.
The above discussion and table are based on 27,731,463 shares of
common stock outstanding as of November 30, 2022, and exclude as of
that date:
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1,428,250 shares of common stock issuable upon the exercise of
outstanding stock options having a weighted-average exercise price
of $3.23 per share;
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393,893 shares of common stock issuable upon vesting of outstanding
restricted stock units;
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1,434,064 shares of common stock reserved for issuance pursuant to
future awards under our 2016 Equity Incentive Plan, as well as any
automatic increases in the number of shares of our common stock
reserved for future issuance under this plan; and
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499,178 shares of common stock reserved for future issuance under
our Amended and Restated 2006 Employee Stock Purchase Plan, as well
as any automatic increases in the number of shares of our common
stock reserved for future issuance under this plan.
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PLAN OF DISTRIBUTION
We have entered into an Equity Distribution Agreement, or sales
agreement, with William Blair and Craig-Hallum under which we may
issue and sell shares of our common stock having an aggregate gross
sales price of up to $25,000,000 from time to time through William
Blair and Craig-Hallum acting as agents.
Upon delivery of a placement notice and subject to the terms and
conditions of the sales agreement, William Blair and Craig-Hallum
may sell our common stock by any method permitted by law deemed to
be an “at-the-market” offering as defined in Rule 415 promulgated
under the Securities Act, including sales made directly on the
Nasdaq Capital Market, on any other existing trading market for our
common stock or to or through a market maker. William Blair and
Craig-Hallum may also sell our common stock by any other method
permitted by law, including in privately negotiated transactions.
We may instruct William Blair and Craig-Hallum not to sell common
stock if the sales cannot be effected at or above the price
designated by us from time to time. We, William Blair or
Craig-Hallum may suspend the offering of common stock upon notice
and subject to other conditions.
We will pay William Blair and Craig-Hallum commissions, in cash,
for their services in acting as agents in the sale of our common
stock. William Blair and Craig-Hallum will be entitled to
compensation at a commission rate of 2.75% of the gross sales price
per share sold. Because there is no minimum offering amount
required as a condition to close this offering, the actual total
public offering amount, commissions and proceeds to us, if any, are
not determinable at this time. We have also agreed to reimburse
William Blair and Craig-Hallum for certain specified expenses,
including the fees and disbursements of their legal counsel, in an
amount not to exceed $45,000 plus $5,000 quarterly for ongoing
diligence requirements, including ongoing legal fees, following the
execution date and during the term of the sales agreement. We
estimate that the total expenses for the offering, excluding
discounts and commissions payable to William Blair and Craig-Hallum
under the terms of the sales agreement, will be approximately
$205,000.
Settlement for sales of common stock will occur on the third
business day following the date on which any sales are made, or on
some other date that is agreed upon by us, William Blair and
Craig-Hallum in connection with a particular transaction, in return
for payment of the net proceeds to us. Sales of our common stock as
contemplated in this prospectus supplement will be settled through
the facilities of The Depository Trust Company or by such other
means as we, William Blair and Craig-Hallum may agree upon. There
is no arrangement for funds to be received in an escrow, trust or
similar arrangement.
William Blair and Craig-Hallum will use their commercially
reasonable efforts, consistent with their sales and trading
practices, to solicit offers to purchase the common stock shares
under the terms and subject to the conditions set forth in the
sales agreement. In connection with the sale of the common stock on
our behalf, William Blair and Craig-Hallum will be deemed to be
“underwriters” within the meaning of the Securities Act and the
compensation of William Blair and Craig-Hallum will be deemed to be
underwriting commissions or discounts. We have agreed to provide
indemnification and contribution to William Blair and Craig-Hallum
against certain civil liabilities, including liabilities under the
Securities Act.
The offering of our common stock pursuant to the sales agreement
will terminate upon the earlier of (1) the sale of all shares
of our common stock subject to the sales agreement, or
(2) termination of the sales agreement as permitted therein.
We, William Blair and Craig-Hallum may each terminate the sales
agreement at any time upon ten days’ prior notice.
Any portion of the $25,000,000 included in this prospectus
supplement that is not previously sold or included in an active
placement notice pursuant to the sales agreement is available for
sale in other offerings pursuant to the base prospectus, and if no
shares are sold under the sales agreement, the remaining
$50,000,000 of securities may be sold in other offerings pursuant
to the base prospectus and a corresponding prospectus
supplement.
William Blair, Craig-Hallum and their affiliates may in the future
provide various investment banking, commercial banking and other
financial services for us and our affiliates, for which services
they may in the future receive customary fees. To the extent
required by Regulation M, William Blair and Craig-Hallum will
not engage in any market making activities involving our common
stock while the offering is ongoing under this prospectus
supplement and the accompanying prospectus.
This prospectus supplement and the accompanying prospectus in
electronic format may be made available on a website maintained by
William Blair and Craig-Hallum, and William Blair and Craig-Hallum
may distribute this prospectus supplement and the accompanying
prospectus electronically.
LEGAL
MATTERS
Latham & Watkins LLP will pass upon certain legal matters
relating to the issuance and sale of the securities offered hereby
on behalf of Aehr Test Systems. Certain legal matters in connection
with this offering will be passed upon for William Blair and
Craig-Hallum by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
EXPERTS
The consolidated financial statements of Aehr Test Systems as of
May 31, 2022 and 2021 and for each of the three years in the period
ended May 31, 2022 incorporated in this prospectus supplement by
reference to the Annual Report on Form 10-K for the year ended May
31, 2022, have been so incorporated in reliance on the report of
BPM LLP, an independent registered public accounting firm.
Such consolidated financial statements are, and audited
consolidated financial statements to be included in subsequently
filed documents will be, incorporated by reference in reliance upon
the reports of BPM LLP relating to such consolidated financial
statements to the extent covered by consents filed with the SEC,
given on the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN
FIND MORE INFORMATION
This prospectus supplement and the accompanying prospectus are part
of the registration statement on Form S-3 we filed with the SEC
under the Securities Act and do not contain all the information set
forth in the registration statement. Whenever a reference is made
in this prospectus supplement or the accompanying prospectus to any
of our contracts, agreements or other documents, the reference may
not be complete and you should refer to the exhibits that are a
part of the registration statement or the exhibits to the reports
or other documents incorporated by reference in this prospectus
supplement and the accompanying prospectus for a copy of such
contract, agreement or other document. We file annual, quarterly
and special reports, proxy statements and other information with
the SEC. The SEC maintains a website that contains reports, proxy
statements and other information about issuers, such as us, who
file electronically with the SEC. The address of that website is
http://www.sec.gov. Our public filings are also available to the
public on our website at www.aehr.com. The information contained on
our website, however, is not, and should not be deemed to be, a
part of this prospectus supplement, the accompanying prospectus or
any other report or filing filed with the SEC.
INFORMATION INCORPORATED BY
REFERENCE
The SEC allows us to “incorporate by reference” the information we
file with them which means that we can disclose important
information to you by referring you to those documents instead of
having to repeat the information in this prospectus supplement and
the accompanying prospectus. The information incorporated by
reference is considered to be part of this prospectus supplement
and the accompanying prospectus, and later information that we file
with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below
and any future information filed (rather than furnished) with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
between the date of this prospectus supplement and the termination
of this offering, provided, however, that we are not incorporating
any information furnished under Item 2.02 or Item 7.01 of
any current report on Form 8-K:
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our Annual Report on Form 10-K for the fiscal year ended May 31,
2022, which was filed with the SEC on
August 26, 2022;
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our Quarterly Reports on Form 10-Q for the interim periods
ended August 31, 2022 and November 30, 2022, which were filed with
the SEC on
October 14, 2022 and
January 13, 2023, respectively;
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our Definitive Proxy Statement with respect to the 2022 Annual
Meeting of Stockholders, which was filed with the SEC on
September 23, 2022 (solely to the extent specifically
incorporated by reference into our Annual Report on Form 10-K);
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our Current Reports on Form 8-K filed with the SEC on
July 20, 2022,
October 21, 2022,
December 8, 2022,
January 17, 2023, and
January 27, 2023; and
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the description of our common stock contained in Exhibit 4.3 to our
Annual Report on Form 10-K for the fiscal year ended May 31, 2022,
which was filed with the SEC on
August 26, 2022, including any amendment or report filed with
the SEC for the purpose of updating such description.
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These documents may also be accessed on our website
at www.aehr.com. Except as otherwise specifically incorporated
by reference in this prospectus supplement and the accompanying
prospectus, information contained in, or accessible through, our
website is not a part of this prospectus supplement and the
accompanying prospectus.
We will furnish without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by
reference, including exhibits to these documents by writing or
telephoning us at the following address:
AEHR TEST SYSTEMS
400 KATO TERRACE
FREMONT, CALIFORNIA 94539
(510) 623-9400
PROSPECTUS
Aehr Test Systems
$75,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Units
We may offer and sell up to $75,000,000 in the aggregate of the
securities identified above from time to time in one or more
offerings. This prospectus provides you with a general description
of the securities.
Each time we offer and sell securities, we will file a supplement
to this prospectus that contains specific information about the
offering and the amounts, prices and terms of the securities. The
supplement may also add, update or change information contained in
this prospectus with respect to that offering. You should carefully
read this prospectus and the applicable prospectus supplement
before you invest in any of our securities.
We may offer and sell the securities described in this prospectus
and any prospectus supplement to or through one or more
underwriters, dealers and agents, or directly to purchasers, or
through a combination of these methods. If any underwriters,
dealers or agents are involved in the sale of any of the
securities, their names and any applicable purchase price, fee,
commission or discount arrangement between or among them will be
set forth, or will be calculable from the information set forth, in
the applicable prospectus supplement. See the sections of this
prospectus entitled “About this Prospectus” and “Plan of
Distribution” for more information. No securities may be sold
without delivery of this prospectus and the applicable prospectus
supplement describing the method and terms of the offering of such
securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE
“RISK FACTORS” ON PAGE 4 OF THIS PROSPECTUS AND ANY SIMILAR
SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT
CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR
SECURITIES.
Our common stock is listed on the Nasdaq Capital Market under the
symbol “AEHR.” On September 2, 2021, the last reported sale price
of our common stock on the Nasdaq Capital Market was $7.53 per
share.
Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is September 17,
2021.
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we filed
with the U.S. Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. By using a shelf registration
statement, we may sell securities from time to time and in one or
more offerings up to a total dollar amount of $75,000,000 as
described in this prospectus. Each time that we offer and sell
securities, we will provide a prospectus supplement to this
prospectus that contains specific information about the securities
being offered and sold and the specific terms of that offering. We
may also authorize one or more free writing prospectuses to be
provided to you that may contain material information relating to
these offerings. The prospectus supplement or free writing
prospectus may also add, update or change information contained in
this prospectus with respect to that offering. If there is any
inconsistency between the information in this prospectus and the
applicable prospectus supplement or free writing prospectus, you
should rely on the prospectus supplement or free writing
prospectus, as applicable. Before purchasing any securities, you
should carefully read both this prospectus and the applicable
prospectus supplement (and any applicable free writing
prospectuses), together with the additional information described
under the heading “Where You Can Find More Information;
Incorporation by Reference.”
We have not authorized anyone to provide you with any information
or to make any representations other than those contained in this
prospectus, any applicable prospectus supplement or any free
writing prospectuses prepared by or on behalf of us or to which we
have referred you. We take no responsibility for, and can provide
no assurance as to the reliability of, any other information that
others may give you. We will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus and the applicable prospectus supplement to this
prospectus is accurate only as of the date on its respective cover,
that the information appearing in any applicable free writing
prospectus is accurate only as of the date of that free writing
prospectus, and that any information incorporated by reference is
accurate only as of the date of the document incorporated by
reference, unless we indicate otherwise. Our business, financial
condition, results of operations and prospects may have changed
since those dates. This prospectus incorporates by reference, and
any prospectus supplement or free writing prospectus may contain
and incorporate by reference, market data and industry statistics
and forecasts that are based on independent industry publications
and other publicly available information. Although we believe these
sources are reliable, we do not guarantee the accuracy or
completeness of this information and we have not independently
verified this information. In addition, the market and industry
data and forecasts that may be included or incorporated by
reference in this prospectus, any prospectus supplement or any
applicable free writing prospectus may involve estimates,
assumptions and other risks and uncertainties and are subject to
change based on various factors, including those discussed under
the heading “Risk Factors” contained in this prospectus, the
applicable prospectus supplement and any applicable free writing
prospectus, and under similar headings in other documents that are
incorporated by reference into this prospectus. Accordingly,
investors should not place undue reliance on this information.
When we refer to “AEHR,” “Aehr Test,” “we,” “our,” “us” and the
“Company” in this prospectus, we mean Aehr Test Systems and its
consolidated subsidiaries, unless otherwise specified. When we
refer to “you,” we mean the potential holders of the applicable
series of securities.
Aehr Test Systems™, AEHR™ and our logo are some of our trademarks
used in this prospectus. This prospectus also includes trademarks,
tradenames and service marks that are the property of other
organizations. Solely for convenience, our trademarks and
tradenames referred to in this prospectus appear without the ® or ™
symbols, but those references are not intended to indicate, in any
way, that we will not assert, to the fullest extent under
applicable law, our rights, or the right of the applicable licensor
to these trademarks and tradenames.
WHERE YOU CAN
FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the
SEC. The SEC maintains a web site that contains reports, proxy and
information statements and other information about issuers, such as
us, who file electronically with the SEC. The address of that
website is http://www.sec.gov.
Our web site address is www.aehr.com. The information on our web
site, however, is not, and should not be deemed to be, a part of
this prospectus.
This prospectus and any prospectus supplement are part of a
registration statement that we filed with the SEC and do not
contain all of the information in the registration statement. The
full registration statement may be obtained from the SEC or us, as
provided below. Forms of the indenture and other documents
establishing the terms of the offered securities are or may be
filed as exhibits to the registration statement or documents
incorporated by reference in the registration statement. Statements
in this prospectus or any prospectus supplement about these
documents are summaries and each statement is qualified in all
respects by reference to the document to which it refers. You
should refer to the actual documents for a more complete
description of the relevant matters. You may inspect a copy of the
registration statement through the SEC’s website, as provided
above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information
into this prospectus, which means that we can disclose important
information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information
that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a
previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or a
subsequently filed document incorporated by reference modifies or
replaces that statement.
This prospectus and any accompanying prospectus supplement
incorporate by reference the documents set forth below that have
previously been filed with the SEC:
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Our Annual Report on Form 10-K for
the year ended May 31, 2021, filed with the SEC on August 27,
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The description of our Common Stock contained in Exhibit 4.3 to our
Annual Report on Form 10-K filed with the SEC on August 27, 2021
and any amendment or report filed with the SEC for the purpose of
updating the description.
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All reports and other documents we subsequently file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, which we refer to as the “Exchange Act” in this
prospectus, prior to the termination of this offering, including
all such documents we may file with the SEC after the date of the
initial registration statement and prior to the effectiveness of
the registration statement, but excluding any information furnished
to, rather than filed with, the SEC, will also be incorporated by
reference into this prospectus and deemed to be part of this
prospectus from the date of the filing of such reports and
documents.
You may request a free copy of any of the documents incorporated by
reference in this prospectus by writing or telephoning us at the
following address:
AEHR TEST SYSTEMS
400 KATO TERRACE
FREMONT, CALIFORNIA 94539
(510) 623-9400
Exhibits to the filings will not be sent, however, unless those
exhibits have specifically been incorporated by reference in this
prospectus or any accompanying prospectus supplement.
THE COMPANY
Aehr Test Systems develops and manufactures burn-in and test
equipment for the semiconductor industry.
We filed our certificate of incorporation with the Secretary of
State of California on May 25, 1977. Our principal executive
offices are located at 400 Kato Terrace, Fremont, California 94539
and our telephone number is (510) 623-9400. Our website address is
www.aehr.com. The information on, or that can be accessed through,
our website is not part of this prospectus. We have included our
website address as an inactive textual reference only.
RISK
FACTORS
Investment in any securities offered pursuant to this prospectus
and the applicable prospectus supplement involves risks. You should
carefully consider the risk factors incorporated by reference to
our most recent Annual Report on Form 10-K and any subsequent
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and
all other information contained or incorporated by reference into
this prospectus, as updated by our subsequent filings under the
Exchange Act, and the risk factors and other information contained
in the applicable prospectus supplement and any applicable free
writing prospectus before acquiring any of such securities. The
occurrence of any of these risks might cause you to lose all or
part of your investment in the offered securities.
USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the securities
as set forth in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and
may not contain all the information you should consider before
investing in our capital stock. This description is summarized
from, and qualified in its entirety by reference to, our restated
articles of incorporation, which have been publicly filed with the
SEC, and to the applicable provisions of California law. See “Where
You Can Find More Information; Incorporation by Reference.”
Our authorized capital stock consists of:
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75,000,000 shares of common stock,
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10,000,000 shares of preferred
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Common Stock
Outstanding Shares
As of May 31, 2021, there were 23,725,228 shares of common stock
outstanding, held of record by 122 stockholders. Our board of
directors is authorized, without stockholder approval, to issue
additional shares of our capital stock.
Dividend Rights
Subject to preferences that may be applicable to any then
outstanding convertible preferred stock, holders of our common
stock are entitled to receive dividends, if any, as may be declared
from time to time by our board of directors out of legally
available funds. We have never declared or paid cash dividends on
any of our capital stock and currently do not anticipate paying any
cash dividends after this offering or in the foreseeable
future.
Voting Rights
There are 75,000,000 shares of common stock authorized for
issuance. Each holder of our common stock is entitled to one vote
for each share on all matters submitted to a vote of stockholders.
Pursuant to our restated articles of incorporation and amended and
restated bylaws, corporate actions can generally be taken by a
majority of our board and/or stockholders holding a majority of our
outstanding shares. Additionally, our stockholders have cumulative
voting rights in the election of directors.
Right to Receive Liquidation
Distributions
In the event of our liquidation, dissolution or winding up, holders
of our common stock are entitled to share ratably in the net assets
legally available for distribution to stockholders after the
payment of all of our debts and other liabilities and the
satisfaction of any liquidation preference granted to the holders
of any then outstanding shares of preferred stock.
Rights and Preferences
Holders of our common stock have no preemptive, conversion,
subscription or other rights, and there are no redemption or
sinking fund provisions applicable to our common stock. The rights,
preferences and privileges of the holders of our common stock are
subject to, and may be adversely affected by, the rights of the
holders of shares of any series of our preferred stock that we may
designate in the future.
Fully Paid and Nonassessable
All of our outstanding shares of common stock are, and the shares
of common stock to be issued pursuant to this offering, when paid
for, will be fully paid and nonassessable.
Transfer Agent
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A. Our shares of common stock are
issued in uncertificated form only, subject to limited
circumstances.
Preferred Stock
Our board of directors has the authority, without further action by
our stockholders, to issue up to 10,000,000 shares of preferred
stock in one or more series and to fix the rights, preferences,
privileges and restrictions thereof. These rights, preferences and
privileges could include dividend rights, conversion rights, voting
rights, terms of redemption, liquidation preferences, sinking fund
terms and the number of shares constituting any series or the
designation of such series, any or all of which may be greater than
the rights of common stock. The issuance of preferred stock by us
could adversely affect the voting power of holders of common stock
and the likelihood that such holders will receive dividend payments
and payments upon liquidation. In addition, the issuance of
preferred stock could have the effect of delaying, deferring or
preventing a change of control of our company or other corporate
action. No shares of preferred stock are outstanding, and we have
no present plan to issue any shares of preferred stock.
Stock Options
As of May 31, 2021 there were 2,766,186 shares of our common stock
issuable upon exercise of outstanding stock options, at a
weighted-average exercise prices of $2.16 per share.
Restricted Stock Options
As of May 31, 2021, there were 132,076 shares of our common stock
issuable upon vesting of outstanding restricted stock units.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information
we include in any applicable prospectus supplement or free writing
prospectus, summarizes certain general terms and provisions of the
debt securities that we may offer under this prospectus. When we
offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement to what extent
the general terms and provisions described in this prospectus apply
to a particular series of debt securities.
We may issue debt securities either separately, or together with,
or upon the conversion or exercise of or in exchange for, other
securities described in this prospectus. Debt securities may be our
senior, senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The debt securities will be issued under an indenture between us
and a trustee. We have summarized select portions of the indenture
below. The summary is not complete. The form of the indenture has
been filed as an exhibit to the registration statement and you
should read the indenture for provisions that may be important to
you. In the summary below, we have included references to the
section numbers of the indenture so that you can easily locate
these provisions. Capitalized terms used in the summary and not
defined herein have the meanings specified in the indenture.
As used in this section only, “AEHR,” “Aehr Test,” “we,” “our” or
“us” refer to AEHR Test Systems, excluding our subsidiaries, unless
expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by
or pursuant to a resolution of our board of directors and set forth
or determined in the manner provided in a resolution of our board
of directors, in an officer’s certificate or by a supplemental
indenture. (Section 2.2) The particular terms of each series of
debt securities will be described in a prospectus supplement
relating to such series (including any pricing supplement or term
sheet).
We can issue an unlimited amount of debt securities under the
indenture that may be in one or more series with the same or
various maturities, at par, at a premium, or at a discount.
(Section 2.1) We will set forth in a prospectus supplement
(including any pricing supplement or term sheet) relating to any
series of debt securities being offered, the aggregate principal
amount and the following terms of the debt securities, if
applicable:
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the title and ranking of the debt
securities (including the terms of any subordination
provisions); |
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the price or prices (expressed as a
percentage of the principal amount) at which we will sell the debt
securities; |
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any limit on the aggregate
principal amount of the debt securities; |
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the date or dates on which the
principal of the securities of the series is payable; |
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the rate or rates (which may be
fixed or variable) per annum or the method used to determine the
rate or rates (including any commodity, commodity index, stock
exchange index or financial index) at which the debt securities
will bear interest, the date or dates from which interest will
accrue, the date or dates on which interest will commence and be
payable and any regular record date for the interest payable on any
interest payment date; |
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the place or places where principal
of, and interest, if any, on the debt securities will be payable
(and the method of such payment), where the securities of such
series may be surrendered for registration of transfer or exchange,
and where notices and demands to us in respect of the debt
securities may be delivered; |
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the period or periods within which,
the price or prices at which and the terms and conditions upon
which we may redeem the debt securities; |
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any obligation we have to redeem or
purchase the debt securities pursuant to any sinking fund or
analogous provisions or at the option of a holder of debt
securities and the period or periods within which, the price or
prices at which and in the terms |
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and conditions upon which
securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation; |
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the dates on which and the price or
prices at which we will repurchase debt securities at the option of
the holders of debt securities and other detailed terms and
provisions of these repurchase obligations; |
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the denominations in which the debt
securities will be issued, if other than denominations of $1,000
and any integral multiple thereof; |
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whether the debt securities will be
issued in the form of certificated debt securities or global debt
securities; |
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the portion of principal amount of
the debt securities payable upon declaration of acceleration of the
maturity date, if other than the principal amount; |
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the currency of denomination of the
debt securities, which may be United States Dollars or any foreign
currency, and if such currency of denomination is a composite
currency, the agency or organization, if any, responsible for
overseeing such composite currency; |
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the designation of the currency,
currencies or currency units in which payment of principal of,
premium and interest on the debt securities will be made; |
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if payments of principal of,
premium or interest on the debt securities will be made in one or
more currencies or currency units other than that or those in which
the debt securities are denominated, the manner in which the
exchange rate with respect to these payments will be
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the manner in which the amounts of
payment of principal of, premium, if any, or interest on the debt
securities will be determined, if these amounts may be determined
by reference to an index based on a currency or currencies or by
reference to a commodity, commodity index, stock exchange index or
financial index; |
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any provisions relating to any
security provided for the debt securities; |
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any addition to, deletion of or
change in the Events of Default described in this prospectus or in
the indenture with respect to the debt securities and any change in
the acceleration provisions described in this prospectus or in the
indenture with respect to the debt securities; |
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any addition to, deletion of or
change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; |
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any depositaries, interest rate
calculation agents, exchange rate calculation agents or other
agents with respect to the debt securities; |
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the provisions, if any, relating to
conversion or exchange of any debt securities of such series,
including if applicable, the conversion or exchange price and
period, provisions as to whether conversion or exchange will be
mandatory, the events requiring an adjustment of the conversion or
exchange price and provisions affecting conversion or
exchange; |
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any other terms of the debt
securities, which may supplement, modify or delete any provision of
the indenture as it applies to that series, including any terms
that may be required under applicable law or regulations or
advisable in connection with the marketing of the securities;
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whether any of our direct or
indirect subsidiaries will guarantee the debt securities of that
series, including the terms of subordination, if any, of such
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We may issue debt securities that provide for an amount less than
their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the
federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities
in a foreign currency or currencies or a foreign currency unit or
units, or if the principal of and any premium and interest on any
series of debt securities is payable in a foreign currency or
currencies or a foreign currency unit or units, we will provide you
with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or
currencies or foreign currency unit or units in the applicable
prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company,
or the Depositary, or a nominee of the Depositary (we will refer to
any debt security represented by a global debt security as a
“book-entry debt security”), or a certificate issued in definitive
registered form (we will refer to any debt security represented by
a certificated security as a “certificated debt security”) as set
forth in the applicable prospectus supplement. Except as set forth
under the heading “Global Debt Securities and Book-Entry System”
below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities. You may transfer or exchange
certificated debt securities at any office we maintain for this
purpose in accordance with the terms of the indenture. (Section
2.4) No service charge will be made for any transfer or exchange of
certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection with a transfer or exchange. (Section 2.7)
You may effect the transfer of certificated debt securities and the
right to receive the principal of, premium and interest on
certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either
reissuance by us or the trustee of the certificate to the new
holder or the issuance by us or the trustee of a new certificate to
the new holder.
Global Debt Securities and Book-Entry System. Each global debt
security representing book-entry debt securities will be deposited
with, or on behalf of, the Depositary, and registered in the name
of the Depositary or a nominee of the Depositary. Please see
“Global Securities.”
Covenants
We will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt securities.
(Article IV)
No Protection in the Event of a Change of
Control
Unless we state otherwise in the applicable prospectus supplement,
the debt securities will not contain any provisions which may
afford holders of the debt securities protection in the event we
have a change in control or in the event of a highly leveraged
transaction (whether or not such transaction results in a change in
control) which could adversely affect holders of debt
securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of our properties and
assets to any person (a “successor person”) unless:
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we are the surviving entity or the
successor person (if other than AEHR) is a corporation,
partnership, trust or other entity organized and validly existing
under the laws and expressly assumes our obligations on the debt
securities and under the indenture; and |
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immediately after giving effect to
the transaction, no Default or Event of Default, shall have
occurred and be continuing. |
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Notwithstanding the above, any of our subsidiaries may consolidate
with, merge into or transfer all or part of its properties to us.
(Section 5.1)
Events of Default
“Event of Default” means with respect to any series of debt
securities, any of the following:
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default in the payment of any
interest upon any debt security of that series when it becomes due
and payable, and continuance of such default for a period of 30
days (unless the entire amount of the payment is deposited by us
with the trustee or with a paying agent prior to the expiration of
the 30-day period); |
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default in the payment of principal
of any security of that series at its maturity; |
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default in the performance or
breach of any other covenant or warranty by us in the indenture
(other than a covenant or warranty that has been included in the
indenture solely for the benefit of a series of debt securities
other than that series), which default continues uncured for a
period of 60 days after we receive written notice from the trustee
or AEHR and the trustee receive written notice from the holders of
not less than 25% in principal amount of the outstanding debt
securities of that series as provided in the indenture; |
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certain voluntary or involuntary
events of bankruptcy, insolvency or reorganization of AEHR; |
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any other Event of Default provided
with respect to debt securities of that series that is described in
the applicable prospectus supplement. (Section 6.1) |
No Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an Event of Default with
respect to any other series of debt securities. (Section 6.1) The
occurrence of certain Events of Default or an acceleration under
the indenture may constitute an event of default under certain
indebtedness of ours or our subsidiaries outstanding from time to
time.
We will provide the trustee written notice of any Default or Event
of Default within 30 days of becoming aware of the occurrence of
such Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action we are taking or propose to take in respect
thereof. (Section 6.1)
If an Event of Default with respect to debt securities of any
series at the time outstanding occurs and is continuing, then the
trustee or the holders of not less than 25% in principal amount of
the outstanding debt securities of that series may, by a notice in
writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt
securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest, if any, on all debt
securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of
Default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. (Section
6.2) We refer you to the prospectus supplement relating to any
series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the
principal amount of such discount securities upon the occurrence of
an Event of Default.
The indenture provides that the trustee may refuse to perform any
duty or exercise any of its rights or powers under the indenture
unless the trustee receives indemnity satisfactory to it against
any cost, liability or expense which might be incurred by it in
performing such duty or exercising such right or power. (Section
7.1(e)) Subject to certain rights of the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the trustee
with respect to the debt securities of that series. (Section
6.12)
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to
the indenture or for the appointment of a receiver or trustee, or
for any remedy under the indenture, unless:
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that holder has previously given to
the trustee written notice of a continuing Event of Default with
respect to debt securities of that series; and |
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the holders of not less than 25% in principal amount of the
outstanding debt securities of that series have made written
request, and offered indemnity or security satisfactory to the
trustee, to the trustee to institute the proceeding as trustee, and
the trustee has not received from the holders of not less than a
majority in principal amount of the outstanding debt securities of
that series a direction inconsistent with that request and has
failed to institute the proceeding within 60 days. (Section
6.7)
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Notwithstanding any other provision in the indenture, the holder of
any debt security will have an absolute and unconditional right to
receive payment of the principal of, premium and any interest on
that debt security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
(Section 6.8)
The indenture requires us, within 120 days after the end of our
fiscal year, to furnish to the trustee a statement as to compliance
with the indenture. (Section 4.3) If a Default or Event of Default
occurs and is continuing with respect to the securities of any
series and if it is known to a responsible officer of the trustee,
the trustee shall mail to each Securityholder of the securities of
that series notice of a Default or Event of Default within 90 days
after it occurs or, if later, after a responsible officer of the
trustee has knowledge of such Default or Event of Default. The
indenture provides that the trustee may withhold notice to the
holders of debt securities of any series of any Default or Event of
Default (except in payment on any debt securities of that series)
with respect to debt securities of that series if the trustee
determines in good faith that withholding notice is in the interest
of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or
the debt securities of any series without the consent of any holder
of any debt security:
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to cure any ambiguity, defect or
inconsistency; |
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to comply with covenants in the
indenture described above under the heading “Consolidation, Merger
and Sale of Assets”; |
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to provide for uncertificated
securities in addition to or in place of certificated
securities; |
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to add guarantees with respect to
debt securities of any series or secure debt securities of any
series; |
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to surrender any of our rights or
powers under the indenture; |
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to add covenants or events of
default for the benefit of the holders of debt securities of any
series; |
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to comply with the applicable
procedures of the applicable depositary; |
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to make any change that does not
adversely affect the rights of any holder of debt securities; |
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to provide for the issuance of and
establish the form and terms and conditions of debt securities of
any series as permitted by the indenture; |
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to effect the appointment of a
successor trustee with respect to the debt securities of any series
and to add to or change any of the provisions of the indenture to
provide for or facilitate administration by more than one trustee;
or |
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to comply with requirements of the
SEC in order to effect or maintain the qualification of the
indenture under the Trust Indenture Act. (Section 9.1) |
We may also modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or
amendment without the consent of the holders of each affected debt
security then outstanding if that amendment will:
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reduce the amount of debt
securities whose holders must consent to an amendment, supplement
or waiver; |
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reduce the rate of or extend the
time for payment of interest (including default interest) on any
debt security; |
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reduce the principal of or premium
on or change the fixed maturity of any debt security or reduce the
amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation with respect to any series of
debt securities; |
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reduce the principal amount of
discount securities payable upon acceleration of maturity; |
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waive a default in the payment of
the principal of, premium or interest on any debt security (except
a rescission of acceleration of the debt securities of any series
by the holders of at least a majority in aggregate principal amount
of the then outstanding debt securities of that series and a waiver
of the payment default that resulted from such acceleration); |
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make the principal of or premium or
interest on any debt security payable in currency other than that
stated in the debt security; |
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make any change to certain
provisions of the indenture relating to, among other things, the
right of holders of debt securities to receive payment of the
principal of, premium and interest on those debt securities and to
institute suit for the enforcement of any such payment and to
waivers or amendments; or |
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waive a redemption payment with
respect to any debt security. (Section 9.3) |
Except for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all debt securities of
that series waive our compliance with provisions of the indenture.
(Section 9.2) The holders of a majority in principal amount of the
outstanding debt securities of any series may on behalf of the
holders of all the debt securities of such series waive any past
default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of,
premium or any interest on any debt security of that series;
provided, however, that the holders of a majority in principal
amount of the outstanding debt securities of any series may rescind
an acceleration and its consequences, including any related payment
default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in
Certain Circumstances
Legal Defeasance. The indenture provides that, unless
otherwise provided by the terms of the applicable series of debt
securities, we may be discharged from any and all obligations in
respect of the debt securities of any series (subject to certain
exceptions). We will be so discharged upon the irrevocable deposit
with the trustee, in trust, of money and/or U.S. government
obligations or, in the case of debt securities denominated in a
single currency other than U.S. Dollars, government obligations of
the government that issued or caused to be issued such currency,
that, through the payment of interest and principal in accordance
with their terms, will provide money or U.S. government obligations
in an amount sufficient in the opinion of a nationally recognized
firm of independent public accountants or investment bank to pay
and discharge each installment of principal, premium and interest
on and any mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of those payments
in accordance with the terms of the indenture and those debt
securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an opinion of counsel stating that we have
received from, or there has been published by, the United States
Internal Revenue Service a ruling or, since the date of execution
of the indenture, there has been a change in the applicable United
States federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the holders of
the debt securities of that series will not recognize income, gain
or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
the deposit, defeasance and discharge had not occurred. (Section
8.3)
Defeasance of Certain Covenants. The indenture provides
that, unless otherwise provided by the terms of the applicable
series of debt securities, upon compliance with certain
conditions:
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we may omit to comply with the
covenant described under the heading “Consolidation, Merger and
Sale of Assets” and certain other covenants set forth in the
indenture, as well as any additional covenants which may be set
forth in the applicable prospectus supplement; and |
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any omission to comply with those
covenants will not constitute a Default or an Event of Default with
respect to the debt securities of that series (“covenant
defeasance”). |
The conditions include:
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depositing with the trustee money
and/or U.S. government obligations or, in the case of debt
securities denominated in a single currency other than U.S.
Dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of
interest and principal in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment
bank to pay and discharge each installment of principal of, premium
and interest on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and
those debt securities; and |
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delivering to the trustee an
opinion of counsel to the effect that the holders of the debt
securities of that series will not recognize income, gain or loss
for United States federal income tax purposes as a result of the
deposit and related covenant defeasance and will be subject to
United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
the deposit and related covenant defeasance had not occurred.
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No Personal Liability of Directors, Officers, Employees or
Securityholders
None of our past, present or future directors, officers, employees
or securityholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or
their creation. By accepting a debt security, each holder waives
and releases all such liability. This waiver and release is part of
the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities
under U.S. federal securities laws, and it is the view of the SEC
that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or
controversy arising out of or relating to the indenture or the
securities, will be governed by the laws of the State of New
York.
The indenture will provide that we, the trustee and the holders of
the debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or
the transactions contemplated thereby.
The indenture will provide that any legal suit, action or
proceeding arising out of or based upon the indenture or the
transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in
the City of New York, and we, the trustee and the holder of the
debt securities (by their acceptance of the debt securities)
irrevocably submit to the non-exclusive jurisdiction of such courts
in any such suit, action or proceeding. The indenture will further
provide that service of any process, summons, notice or document by
mail (to the extent allowed under any applicable statute or rule of
court) to such party’s address set forth in the indenture will be
effective service of process for any suit, action or other
proceeding brought in any such court. The indenture will further
provide that we, the trustee and the holders of the debt securities
(by their acceptance of the debt securities) irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or
claim any such suit, action or other proceeding has been brought in
an inconvenient forum. (Section 10.10)
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to offer depositary shares rather than
full shares of preferred stock. Each depositary share will
represent ownership of and entitlement to all rights and
preferences of a fraction of a share of preferred stock of a
specified series (including dividend, voting, redemption and
liquidation rights). The applicable fraction will be specified in a
prospectus supplement. The shares of preferred stock represented by
the depositary shares will be deposited with a depositary named in
the applicable prospectus supplement, under a deposit agreement
among us, the depositary and the holders of the certificates
evidencing depositary shares, or depositary receipts. Depositary
receipts will be delivered to those persons purchasing depositary
shares in the offering. The depositary will be the transfer agent,
registrar and dividend disbursing agent for the depositary shares.
Holders of depositary receipts agree to be bound by the deposit
agreement, which requires holders to take certain actions such as
filing proof of residence and paying certain charges.
The summary of the terms of the depositary shares contained in this
prospectus does not purport to be complete and is subject to, and
qualified in its entirety by, the provisions of the deposit
agreement and our articles of incorporation and the certificate of
designation that are, or will be, filed with the SEC for the
applicable series of preferred stock.
Dividends
The depositary will distribute all cash dividends or other cash
distributions received in respect of the series of preferred stock
represented by the depositary shares to the record holders of
depositary receipts in proportion to the number of depositary
shares owned by such holders on the relevant record date, which
will be the same date as the record date fixed by us for the
applicable series of preferred stock. The depositary, however, will
distribute only such amount as can be distributed without
attributing to any depositary share a fraction of one cent, and any
balance not so distributed will be added to and treated as part of
the next sum received by the depositary for distribution to record
holders of depositary receipts then outstanding.
In the event of a distribution other than in cash, the depositary
will distribute property received by it to the record holders of
depositary receipts entitled thereto, in proportion, as nearly as
may be practicable, to the number of depositary shares owned by
such holders on the relevant record date, unless the depositary
determines (after consultation with us) that it is not feasible to
make such distribution, in which case the depositary may (with our
approval) adopt any other method for such distribution as it deems
equitable and appropriate, including the sale of such property (at
such place or places and upon such terms as it may deem equitable
and appropriate) and distribution of the net proceeds from such
sale to such holders.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the
affairs of AEHR, whether voluntary or involuntary, the holders of
each depositary share will be entitled to the fraction of the
liquidation preference accorded each share of the applicable series
of preferred stock as set forth in the applicable prospectus
supplement.
Redemption
If the series of preferred stock represented by the applicable
series of depositary shares is redeemable, such depositary shares
will be redeemed from the proceeds received by the depositary
resulting from the redemption, in whole or in part, of the
preferred stock held by the depositary. Whenever we redeem any
preferred stock held by the depositary, the depositary will redeem
as of the same redemption date the number of depositary shares
representing the shares of preferred stock so redeemed. The
depositary will mail the notice of redemption promptly upon receipt
of such notice from us and not less than 30 nor more than 60 days
prior to the date fixed for redemption of the preferred stock and
the depositary shares to the record holders of the depositary
receipts.
Voting
Promptly upon receipt of notice of any meeting at which the holders
of the series of preferred stock represented by the applicable
series of depositary shares are entitled to vote, the depositary
will mail the information contained in such notice of meeting to
the record holders of the depositary receipts as of the record date
for such meeting. Each such record holder of depositary receipts
will be entitled to instruct the depositary as to the exercise of
the voting rights pertaining to the number of shares of preferred
stock represented by such record holder’s depositary shares. The
depositary will endeavor, insofar as practicable, to vote such
preferred stock represented by such depositary shares in accordance
with such instructions, and we will agree to take all action which
may be deemed necessary by the depositary in order to enable the
depositary to do so. The depositary will abstain from voting any of
the preferred stock to the extent that it does not receive specific
instructions from the holders of depositary receipts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of
the depositary and payment of any unpaid amount due the depositary,
and subject to the terms of the deposit agreement, the owner of the
depositary shares evidenced thereby is entitled to delivery of the
number of whole shares of preferred stock and all money and other
property, if any, represented by such depositary shares. Partial
shares of preferred stock will not be issued. If the depositary
receipts delivered by the holder evidence a number of depositary
shares in excess of the number of depositary shares representing
the number of whole shares of preferred stock to be withdrawn, the
depositary will deliver to such holder at the same time a new
depositary receipt evidencing such excess number of depositary
shares. Holders of preferred stock thus withdrawn will not
thereafter be entitled to deposit such shares under the deposit
agreement or to receive depositary receipts evidencing depositary
shares therefor.
Amendment and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may at any time and from
time to time be amended by agreement between us and the depositary.
However, any amendment which materially and adversely alters the
rights of the holders (other than any change in fees) of depositary
shares will not be effective unless such amendment has been
approved by at least a majority of the depositary shares then
outstanding. No such amendment may impair the right, subject to the
terms of the deposit agreement, of any owner of any depositary
shares to surrender the depositary receipt evidencing such
depositary shares with instructions to the depositary to deliver to
the holder of the preferred stock and all money and other property,
if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
The deposit agreement will be permitted to be terminated by us upon
not less than 30 days prior written notice to the applicable
depositary if a majority of each series of preferred stock affected
by such termination consents to such termination, whereupon such
depositary will be required to deliver or make available to each
holder of depositary receipts, upon surrender of the depositary
receipts held by such holder, such number of whole or fractional
shares of preferred stock as are represented by the depositary
shares evidenced by such depositary receipts together with any
other property held by such depositary with respect to such
depositary receipts. In addition, the deposit agreement will
automatically terminate if (a) all outstanding depositary shares
thereunder shall have been redeemed, (b) there shall have been a
final distribution in respect of the related preferred stock in
connection with any liquidation, dissolution or winding-up of AEHR
and such distribution shall have been distributed to the holders of
depositary receipts evidencing the depositary shares representing
such preferred stock or (c) each share of the related preferred
stock shall have been converted into stock of AEHR not so
represented by depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements.
We will pay charges of the depositary in connection with the
initial deposit of the preferred stock and initial issuance of the
depositary shares, and redemption of the preferred stock and all
withdrawals of preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and other
taxes and governmental charges and certain other charges as are
provided in the deposit agreement to be for their accounts. In
certain circumstances, the depositary may refuse to transfer
depositary shares, may withhold dividends and distributions and
sell the depositary shares evidenced by such depositary receipt if
such charges are not paid. The applicable prospectus supplement
will include information with respect to fees and charges, if any,
in connection with the deposit or substitution of the underlying
securities, the receipt and distribution of dividends, the sale or
exercise of rights, the withdrawal of the underlying security, and
the transferring, splitting or grouping of receipts. The applicable
prospectus supplement will also include information with respect to
the right to collect the fees and charges, if any, against
dividends received and deposited securities.
Miscellaneous
The depositary will forward to the holders of depositary receipts
all notices, reports and proxy soliciting material from us which
are delivered to the depositary and which we are required to
furnish to the holders of the preferred stock. In addition, the
depositary will make available for inspection by holders of
depositary receipts at the principal office of the depositary, and
at such other places as it may from time to time deem advisable,
any notices, reports and proxy soliciting material received from us
which are received by the depositary as the holder of preferred
stock. The applicable prospectus supplement will include
information about the rights, if any, of holders of receipts to
inspect the transfer books of the depositary and the list of
holders of receipts.
Neither the depositary nor AEHR assumes any obligation or will be
subject to any liability under the deposit agreement to holders of
depositary receipts other than for its negligence or willful
misconduct. Neither the depositary nor AEHR will be liable if it is
prevented or delayed by law or any circumstance beyond its control
in performing its obligations under the deposit agreement. The
obligations of AEHR and the depositary under the deposit agreement
will be limited to performance in good faith of their duties
thereunder, and they will not be obligated to prosecute or defend
any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. AEHR
and the depositary may rely on written advice of counsel or
accountants, on information provided by holders of the depositary
receipts or other persons believed in good faith to be competent to
give such information and on documents believed to be genuine and
to have been signed or presented by the proper party or
parties.
In the event the depositary shall receive conflicting claims,
requests or instructions from any holders of depositary receipts,
on the one hand, and us, on the other hand, the depositary shall be
entitled to act on such claims, requests or instructions received
from us.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of
its election to do so, and we may at any time remove the
depositary, any such resignation or removal to take effect upon the
appointment of a successor depositary and its acceptance of such
appointment. Such successor depositary must be appointed within 60
days after delivery of the notice for resignation or removal and
must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least
$150,000,000.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common
stock or preferred stock or of debt securities. We may issue
warrants independently or together with other securities, and the
warrants may be attached to or separate from any offered
securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and the investors
or a warrant agent. The following summary of material provisions of
the warrants and warrant agreements are subject to, and qualified
in their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to a
particular series of warrants. The terms of any warrants offered
under a prospectus supplement may differ from the terms described
below. We urge you to read the applicable prospectus supplement and
any related free writing prospectus, as well as the complete
warrant agreements and warrant certificates that contain the terms
of the warrants.
The particular terms of any issue of warrants will be described in
the prospectus supplement relating to the issue. Those terms may
include:
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the number of shares of common
stock or preferred stock purchasable upon the exercise of warrants
to purchase such shares and the price at which such number of
shares may be purchased upon such exercise; |
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the designation, stated value and
terms (including, without limitation, liquidation, dividend,
conversion and voting rights) of the series of preferred stock
purchasable upon exercise of warrants to purchase preferred
stock; |
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the principal amount of debt
securities that may be purchased upon exercise of a debt warrant
and the exercise price for the warrants, which may be payable in
cash, securities or other property; |
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the date, if any, on and after
which the warrants and the related debt securities, preferred stock
or common stock will be separately transferable; |
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the terms of any rights to redeem
or call the warrants; |
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the date on which the right to
exercise the warrants will commence and the date on which the right
will expire; |
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United States Federal income tax
consequences applicable to the warrants; and |
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any additional terms of the
warrants, including terms, procedures, and limitations relating to
the exchange, exercise and settlement of the warrants. |
Holders of equity warrants will not be entitled:
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to vote, consent or receive
dividends; |
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receive notice as shareholders with
respect to any meeting of shareholders for the election of our
directors or any other matter; or |
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exercise any rights as shareholders
of AEHR. |
Each warrant will entitle its holder to purchase the principal
amount of debt securities or the number of shares of preferred
stock or common stock at the exercise price set forth in, or
calculable as set forth in, the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will
become void.
A holder of warrant certificates may exchange them for new warrant
certificates of different denominations, present them for
registration of transfer and exercise them at the corporate trust
office of the warrant agent or any other office indicated in the
applicable prospectus supplement. Until any warrants to purchase
debt securities are exercised, the holder of the warrants will not
have any rights of holders of the debt securities that can be
purchased upon exercise, including any rights to receive payments
of principal, premium or interest on the underlying debt securities
or to enforce covenants in the applicable indenture. Until any
warrants to purchase common stock or preferred stock are exercised,
the holders of the warrants will not have any rights of holders of
the underlying common stock or preferred stock, including any
rights to receive dividends or payments upon any liquidation,
dissolution or winding up on the common stock or preferred stock,
if any.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our common stock,
preferred stock or debt securities. These subscription rights may
be offered independently or together with any other security
offered hereby and may or may not be transferable by the
stockholder receiving the subscription rights in such offering. In
connection with any offering of subscription rights, we may enter
into a standby arrangement with one or more underwriters or other
purchasers pursuant to which the underwriters or other purchasers
may be required to purchase any securities remaining unsubscribed
for after such offering.
The prospectus supplement relating to any subscription rights we
offer, if any, will, to the extent applicable, include specific
terms relating to the offering, including some or all of the
following:
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the price, if any, for the subscription rights;
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the exercise price payable for our common stock, preferred stock or
debt securities upon the exercise of the
subscription rights;
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the number of subscription rights to be issued to each
stockholder;
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the number and terms of our common stock, preferred stock or debt
securities which may be purchased per each
subscription right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms,
procedures and limitations relating to the exchange
and exercise of the subscription rights;
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the date on which the right to exercise the subscription rights
shall commence, and the date on which the
subscription rights shall expire;
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the extent to which the subscription rights may include an
over-subscription privilege with respect to
unsubscribed securities or an over-allotment privilege to the
extent the securities are fully subscribed; and
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if applicable, the material terms of any standby underwriting or
purchase arrangement which may be entered
into by AEHR in connection with the offering of subscription
rights.
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The description in the applicable prospectus supplement of any
subscription rights we offer will not necessarily be complete and
will be qualified in its entirety by reference to the applicable
subscription rights certificate, which will be filed with the SEC
if we offer subscription rights. We urge you to read the applicable
subscription rights certificate and any applicable prospectus
supplement in their entirety.
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types
of securities offered under this prospectus in one or more series.
We may evidence each series of units by unit certificates that we
will issue under a separate agreement. We may enter into unit
agreements with a unit agent. Each unit agent will be a bank or
trust company that we select. We will indicate the name and address
of the unit agent in the applicable prospectus supplement relating
to a particular series of units.
The following description, together with the additional information
included in any applicable prospectus supplement, summarizes the
general features of the units that we may offer under this
prospectus. You should read any prospectus supplement and any free
writing prospectus that we may authorize to be provided to you
related to the series of units being offered, as well as the
complete unit agreements that contain the terms of the units.
Specific unit agreements will contain additional important terms
and provisions and we will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate
by reference from another report that we file with the SEC, the
form of each unit agreement relating to units offered under this
prospectus.
If we offer any units, certain terms of that series of units will
be described in the applicable prospectus supplement, including,
without limitation, the following, as applicable:
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the title of the series of
units; |
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identification and description of
the separate constituent securities comprising the units; |
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the price or prices at which the
units will be issued; |
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the date, if any, on and after
which the constituent securities comprising the units will be
separately transferable; |
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a discussion of certain United
States federal income tax considerations applicable to the units;
and |
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any other terms of the units and
their constituent securities. |
GLOBAL
SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus
supplement or free writing prospectus, the securities initially
will be issued in book-entry form and represented by one or more
global notes or global securities, or, collectively, global
securities. The global securities will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York, as
depositary, or DTC, and registered in the name of Cede & Co.,
the nominee of DTC. Unless and until it is exchanged for individual
certificates evidencing securities under the limited circumstances
described below, a global security may not be transferred except as
a whole by the depositary to its nominee or by the nominee to the
depositary, or by the depositary or its nominee to a successor
depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company
organized under the New York Banking Law; |
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a “banking organization” within the
meaning of the New York Banking Law; |
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a member of the Federal Reserve
System; |
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a “clearing corporation” within the
meaning of the New York Uniform Commercial Code; and |
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a “clearing agency” registered
pursuant to the provisions of Section 17A of the Exchange Act. |
DTC holds securities that its participants deposit with DTC. DTC
also facilitates the settlement among its participants of
securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in participants’ accounts, thereby eliminating the need for
physical movement of securities certificates. “Direct participants”
in DTC include securities brokers and dealers, including
underwriters, banks, trust companies, clearing corporations and
other organizations. DTC is a wholly-owned subsidiary of The
Depository Trust & Clearing Corporation, or DTCC. DTCC is the
holding company for DTC, National Securities Clearing Corporation
and Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others,
which we sometimes refer to as indirect participants, that clear
through or maintain a custodial relationship with a direct
participant, either directly or indirectly. The rules applicable to
DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or
through direct participants, which will receive a credit for the
securities on DTC’s records. The ownership interest of the actual
purchaser of a security, which we sometimes refer to as a
beneficial owner, is in turn recorded on the direct and indirect
participants’ records. Beneficial owners of securities will not
receive written confirmation from DTC of their purchases. However,
beneficial owners are expected to receive written confirmations
providing details of their transactions, as well as periodic
statements of their holdings, from the direct or indirect
participants through which they purchased securities. Transfers of
ownership interests in global securities are to be accomplished by
entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates
representing their ownership interests in the global securities,
except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited
by direct participants with DTC will be registered in the name of
DTC’s partnership nominee, Cede & Co., or such other name as
may be requested by an authorized representative of DTC. The
deposit of securities with DTC and their registration in the name
of Cede & Co. or such other nominee will not change the
beneficial ownership of the securities. DTC has no knowledge of the
actual beneficial owners of the securities. DTC’s records reflect
only the identity of the direct participants to whose accounts the
securities are credited, which may or may not be the beneficial
owners. The participants are responsible for keeping account of
their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive
payments and may transfer securities only through the facilities of
the depositary and its direct and indirect participants. We will
maintain an office or agency in the location specified in the
prospectus supplement for the applicable securities, where notices
and demands in respect of the securities and the indenture may be
delivered to us and where certificated securities may be
surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and
by direct participants and indirect participants to beneficial
owners will be governed by arrangements among them, subject to any
legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the
securities of a particular series are being redeemed, DTC’s
practice is to determine by lot the amount of the interest of each
direct participant in the securities of such series to be
redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will
consent or vote with respect to the securities. Under its usual
procedures, DTC will mail an omnibus proxy to us as soon as
possible after the record date. The omnibus proxy assigns the
consenting or voting rights of Cede & Co. to those direct
participants to whose accounts the securities of such series are
credited on the record date, identified in a listing attached to
the omnibus proxy.
So long as securities are in book-entry form, we will make payments
on those securities to the depositary or its nominee, as the
registered owner of such securities, by wire transfer of
immediately available funds. If securities are issued in definitive
certificated form under the limited circumstances described below
and unless if otherwise provided in the description of the
applicable securities herein or in the applicable prospectus
supplement, we will have the option of making payments by check
mailed to the addresses of the persons entitled to payment or by
wire transfer to bank accounts in the United States designated in
writing to the applicable trustee or other designated party at
least 15 days before the applicable payment date by the persons
entitled to payment, unless a shorter period is satisfactory to the
applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the
securities will be made to Cede & Co., or such other nominee as
may be requested by an authorized representative of DTC. DTC’s
practice is to credit direct participants’ accounts upon DTC’s
receipt of funds and corresponding detail information from us on
the payment date in accordance with their respective holdings shown
on DTC records. Payments by participants to beneficial owners will
be governed by standing instructions and customary practices, as is
the case with securities held for the account of customers in
bearer form or registered in “street name.” Those payments will be
the responsibility of participants and not of DTC or us, subject to
any statutory or regulatory requirements in effect from time to
time. Payment of redemption proceeds, distributions and dividend
payments to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC, is our
responsibility, disbursement of payments to direct participants is
the responsibility of DTC, and disbursement of payments to the
beneficial owners is the responsibility of direct and indirect
participants.
Except under the limited circumstances described below, purchasers
of securities will not be entitled to have securities registered in
their names and will not receive physical delivery of securities.
Accordingly, each beneficial owner must rely on the procedures of
DTC and its participants to exercise any rights under the
securities and the indenture.
The laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form.
Those laws may impair the ability to transfer or pledge beneficial
interests in securities.
DTC may discontinue providing its services as securities depositary
with respect to the securities at any time by giving reasonable
notice to us. Under such circumstances, in the event that a
successor depositary is not obtained, securities certificates are
required to be printed and delivered.
As noted above, beneficial owners of a particular series of
securities generally will not receive certificates representing
their ownership interests in those securities. However, if:
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DTC notifies us that it is unwilling or unable to continue as a
depositary for the global security or securities representing such
series of securities or if DTC ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to
be registered and a successor depositary is not appointed within 90
days of the notification to us or of our becoming aware of DTC’s
ceasing to be so registered, as the case may be;
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we determine, in our sole
discretion, not to have such securities represented by one or more
global securities; or |
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an Event of Default has occurred
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we will prepare and deliver certificates for such securities in
exchange for beneficial interests in the global securities. Any
beneficial interest in a global security that is exchangeable under
the circumstances described in the preceding sentence will be
exchangeable for securities in definitive certificated form
registered in the names that the depositary directs. It is expected
that these directions will be based upon directions received by the
depositary from its participants with respect to ownership of
beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may
hold interests in a global security through Clearstream Banking
S.A., which we refer to as “Clearstream,” or Euroclear Bank
S.A./N.V., as operator of the Euroclear System, which we refer to
as “Euroclear,” either directly if you are a participant in
Clearstream or Euroclear or indirectly through organizations which
are participants in Clearstream or Euroclear. Clearstream and
Euroclear will hold interests on behalf of their respective
participants through customers’ securities accounts in the names of
Clearstream and Euroclear, respectively, on the books of their
respective U.S. depositaries, which in turn will hold such
interests in customers’ securities accounts in such depositaries’
names on DTC’s books.
Clearstream and Euroclear are securities clearance systems in
Europe. Clearstream and Euroclear hold securities for their
respective participating organizations and facilitate the clearance
and settlement of securities transactions between those
participants through electronic book-entry changes in their
accounts, thereby eliminating the need for physical movement of
certificates.
Payments, deliveries, transfers, exchanges, notices and other
matters relating to beneficial interests in global securities owned
through Euroclear or Clearstream must comply with the rules and
procedures of those systems. Transactions between participants in
Euroclear or Clearstream, on one hand, and other participants in
DTC, on the other hand, are also subject to DTC’s rules and
procedures.
Investors will be able to make and receive through Euroclear and
Clearstream payments, deliveries, transfers and other transactions
involving any beneficial interests in global securities held
through those systems only on days when those systems are open for
business. Those systems may not be open for business on days when
banks, brokers and other institutions are open for business in the
United States.
Cross-market transfers between participants in DTC, on the one
hand, and participants in Euroclear or Clearstream, on the other
hand, will be effected through DTC in accordance with the DTC’s
rules on behalf of Euroclear or Clearstream, as the case may be, by
their respective U.S. depositaries; however, such cross-market
transactions will require delivery of instructions to Euroclear or
Clearstream, as the case may be, by the counterparty in such system
in accordance with the rules and procedures and within the
established deadlines (European time) of such system. Euroclear or
Clearstream, as the case may be, will, if the transaction meets its
settlement requirements, deliver instructions to its U.S.
depositary to take action to effect final settlement on its behalf
by delivering or receiving interests in the global securities
through DTC, and making or receiving payment in accordance with
normal procedures for same-day fund settlement. Participants in
Euroclear or Clearstream may not deliver instructions directly to
their respective U.S. depositaries.
Due to time zone differences, the securities accounts of a
participant in Euroclear or Clearstream purchasing an interest in a
global security from a direct participant in DTC will be credited,
and any such crediting will be reported to the relevant participant
in Euroclear or Clearstream, during the securities settlement
processing day (which must be a business day for Euroclear or
Clearstream) immediately following the settlement date of DTC. Cash
received in Euroclear or Clearstream as a result of sales of
interests in a global security by or through a participant in
Euroclear or Clearstream to a direct participant in DTC will be
received with value on the settlement date of DTC but will be
available in the relevant Euroclear or Clearstream cash account
only as of the business day for Euroclear or Clearstream following
DTC’s settlement date.
Other
The information in this section of this prospectus concerning DTC,
Clearstream, Euroclear and their respective book-entry systems has
been obtained from sources that we believe to be reliable, but we
do not take responsibility for this information. This information
has been provided solely as a matter of convenience. The rules and
procedures of DTC, Clearstream and Euroclear are solely within the
control of those organizations and could change at any time.
Neither we nor the trustee nor any agent of ours or of the trustee
has any control over those entities and none of us takes any
responsibility for their activities. You are urged to contact DTC,
Clearstream and Euroclear or their respective participants directly
to discuss those matters. In addition, although we expect that DTC,
Clearstream and Euroclear will perform the foregoing procedures,
none of them is under any obligation to perform or continue to
perform such procedures and such procedures may be discontinued at
any time. Neither we nor any agent of ours will have any
responsibility for the performance or nonperformance by DTC,
Clearstream and Euroclear or their respective participants of these
or any other rules or procedures governing their respective
operations.
PLAN OF
DISTRIBUTION
We may sell the securities from time to time pursuant to
underwritten public offerings, negotiated transactions, block
trades or a combination of these methods or through underwriters or
dealers, through agents and/or directly to one or more purchasers.
The securities may be distributed from time to time in one or more
transactions:
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at a fixed price or prices, which
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at market prices prevailing at the
time of sale; |
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at prices related to such
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Each time that we sell securities covered by this prospectus, we
will provide a prospectus supplement or supplements that will
describe the method of distribution and set forth the terms and
conditions of the offering of such securities, including the
offering price of the securities and the proceeds to us, if
applicable.
Offers to purchase the securities being offered by this prospectus
may be solicited directly. Agents may also be designated to solicit
offers to purchase the securities from time to time. Any agent
involved in the offer or sale of our securities will be identified
in a prospectus supplement.
If a dealer is utilized in the sale of the securities being offered
by this prospectus, the securities will be sold to the dealer, as
principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of
resale.
If an underwriter is utilized in the sale of the securities being
offered by this prospectus, an underwriting agreement will be
executed with the underwriter at the time of sale and the name of
any underwriter will be provided in the prospectus supplement that
the underwriter will use to make resales of the securities to the
public. In connection with the sale of the securities, we or the
purchasers of securities for whom the underwriter may act as agent,
may compensate the underwriter in the form of underwriting
discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation
in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for which they
may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a
dealer will purchase securities as a principal, and may then resell
the securities at varying prices to be determined by the
dealer.
Any compensation paid to underwriters, dealers or agents in
connection with the offering of the securities, and any discounts,
concessions or commissions allowed by underwriters to participating
dealers will be provided in the applicable prospectus supplement.
Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters within the
meaning of the Securities Act of 1933, as amended, and any
discounts and commissions received by them and any profit realized
by them on resale of the securities may be deemed to be
underwriting discounts and commissions. We may enter into
agreements to indemnify underwriters, dealers and agents against
civil liabilities, including liabilities under the Securities Act,
or to contribute to payments they may be required to make in
respect thereof and to reimburse those persons for certain
expenses.
Any common stock will be listed on the Nasdaq Global Capital
Market, but any other securities may or may not be listed on a
national securities exchange. To facilitate the offering of
securities, certain persons participating in the offering may
engage in transactions that stabilize, maintain or otherwise affect
the price of the securities. This may include over-allotments or
short sales of the securities, which involve the sale by persons
participating in the offering of more securities than were sold to
them. In these circumstances, these persons would cover such
over-allotments or short positions by making purchases in the open
market or by exercising their over-allotment option, if any. In
addition, these persons may stabilize or maintain the price of the
securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in the offering may be reclaimed
if securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market.
These transactions may be discontinued at any time.
We may engage in at the market offerings into an existing trading
market in accordance with Rule 415(a)(4) under the Securities Act.
In addition, we may enter into derivative transactions with third
parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If the applicable
prospectus supplement so indicates, in connection with those
derivatives, the third parties may sell securities covered by this
prospectus and the applicable prospectus supplement, including in
short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of stock, and may use
securities received from us in settlement of those derivatives to
close out any related open borrowings of stock. The third party in
such sale transactions will be an underwriter and, if not
identified in this prospectus, will be named in the applicable
prospectus supplement (or a post-effective amendment). In addition,
we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the
securities short using this prospectus and an applicable prospectus
supplement. Such financial institution or other third party may
transfer its economic short position to investors in our securities
or in connection with a concurrent offering of other
securities.
The specific terms of any lock-up provisions in respect of any
given offering will be described in the applicable prospectus
supplement.
The underwriters, dealers and agents may engage in transactions
with us, or perform services for us, in the ordinary course of
business for which they receive compensation.
LEGAL
MATTERS
Latham & Watkins LLP will pass upon certain legal matters
relating to the issuance and sale of the securities offered hereby
on behalf of AEHR Test Systems. Additional legal matters may be
passed upon for us or any underwriters, dealers or agents, by
counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The consolidated financial statements of AEHR Test Systems as of
May 31, 2021 and 2020 and for each of the three years in the period
ended May 31, 2021 incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended May 31, 2021,
have been so incorporated in reliance on the report of BPM LLP, an
independent registered public accounting firm.
Such consolidated financial statements are, and audited
consolidated financial statements to be included in subsequently
filed documents will be, incorporated by reference in reliance upon
the reports of BPM LLP relating to such consolidated financial
statements to the extent covered by consents filed with the
Securities and Exchange Commission, given on the authority of said
firm as experts in auditing and accounting.
Up to $25,000,000 of Shares
Common Stock
PROSPECTUS SUPPLEMENT
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William Blair
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Craig-Hallum
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February 7, 2023
Aehr Test Systems (NASDAQ:AEHR)
Historical Stock Chart
From Apr 2023 to May 2023
Aehr Test Systems (NASDAQ:AEHR)
Historical Stock Chart
From May 2022 to May 2023
