0001040470-12-000005.txt : 20120109
0001040470-12-000005.hdr.sgml : 20120109
20120109131931
ACCESSION NUMBER: 0001040470-12-000005
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 7
CONFORMED PERIOD OF REPORT: 20120103
ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
FILED AS OF DATE: 20120109
DATE AS OF CHANGE: 20120109
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AEHR TEST SYSTEMS
CENTRAL INDEX KEY: 0001040470
STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825]
IRS NUMBER: 942424084
STATE OF INCORPORATION: CA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-22893
FILM NUMBER: 12516916
BUSINESS ADDRESS:
STREET 1: 400 KATO TERRACE
CITY: FREMONT
STATE: CA
ZIP: 94539
BUSINESS PHONE: 5106239400
MAIL ADDRESS:
STREET 1: 400 KATO TERRACE
CITY: FREMONT
STATE: CA
ZIP: 94539
8-K
1
e8k010912.txt
FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): January 3, 2012
Aehr Test Systems
(Exact name of Registrant as specified in its charter)
California 000-22893 94-2424084
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification Number)
400 Kato Terrace
Fremont, California 94539
(Address of principal executive offices, including zip code)
510-623-9400
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Departure and Appointment of Certain Officers; Election of Directors
On January 3, 2012, the Board of Directors (the "Board") of Aehr
Test Systems (the "Company") appointed Gayn Erickson, 47, as the President
and Chief Executive Officer of the Company (including principal executive
officer), to succeed Rhea J. Posedel, 69, who has resigned as the Chief
Executive Officer effective January 3, 2012 and has been simultaneously
appointed by the Board to serve in the newly-created position of Executive
Chairman. In addition, the Board appointed Mr. Erickson as a member of the
Board. Mr. Posedel will continue to serve as a member of the Board.
Prior to joining the Company, Mr. Erickson served as corporate
officer, senior vice president and general manager of Verigy Ltd.'s memory
test business from February of 2006 until October of 2011. Prior to that,
he was vice president of marketing and sales for Agilent Technologies'
Semiconductor Memory Test products. He has over 23 years of executive
and general management, operations, marketing, sales, and R&D program
management experience, dating back to the late 1980s when he began his
career in semiconductor test with Hewlett-Packard's Automated Test Group.
There are no familial relationships between Messrs. Erickson or
Posedel with any other executive officers of the Company or members of
the Board.
A copy of the press release announcing these officer appointments
is filed with this Form 8-K and attached hereto as Exhibit 99.1.
Compensatory Arrangements of Certain Officers
In connection with the appointment of Mr. Erickson to his position
as President and Chief Executive Officer and to the Board of the Company,
on January 3, 2012 the Board approved an offer letter with Mr. Erickson
(the "Erickson Offer Letter"). Mr. Erickson will also enter into the
Company's standard indemnification agreement in the form previously
approved by the Board. Pursuant to the terms of the Erickson Offer Letter,
Mr. Erickson will receive, among other things, an annual base salary of
$275,000, an annual bonus starting at forty percent (40%) of his annual
base salary up to a maximum of eighty percent (80%) of his annual base
salary, and a prorated five (5) month bonus for the fiscal year ended
May 31, 2012 with a target level of $45,800, ninety percent (90%) of
which is guaranteed. In addition, the Board approved a grant of a
stock option to purchase 400,000 shares of the Company's common stock
under the Company's 2006 Equity Incentive Plan, subject to vesting over
a four (4) year period at a rate of one forty-eighth (1/48th) per month.
In connection with the appointment of Mr. Posedel to his position
as Executive Chairman of the Company, the Board also approved an offer
letter with Mr. Posedel (the "Posedel Offer Letter"), providing for a
minimum of two (2) years of employment. Pursuant to the terms of the
Posedel Offer Letter, Mr. Posedel's new annual base salary is $236,000,
and his target annual bonus amount starts at up to twelve and one half
percent (12.5%) of his annual base salary. In addition, Mr. Posedel is
eligible for stock option grants pursuant to the Company's 2006 Equity
Incentive Plan, as determined from time to time by the Compensation
Committee of the Board.
The full texts of the Erickson Offer Letter and the Posedel Offer
Letter are attached to this Form 8-K as Exhibits 10.1 and 10.2,
respectively. This description is qualified by reference to the actual
text of such agreements.
Change of Control Severance Agreements
On January 3, 2012, the Board approved a Change of Control Severance
Agreement with Mr. Erickson (the "Erickson Severance Agreement")
pursuant to which Mr. Erickson is entitled to receive certain benefits
upon termination. Under the Erickson Severance Agreement, if Mr. Erickson
is terminated as a result of an Involuntary Termination (as such term is
defined in the Erickson Severance Agreement) within twelve (12) months
following a Change of Control (as such term is defined in the Erickson
Severance Agreement), Mr. Erickson is entitled to a lump sum payment equal
to eighteen (18) months base salary, his prorated bonus for the final
period, and full vesting of all outstanding stock options. Further, if
Mr. Erickson is terminated as a result of an Involuntary Termination
outside of a Change of Control, Mr. Erickson is entitled to a lump sum
payment equal to twelve (12) months base salary, his prorated bonus for
the final period, and vesting of all outstanding stock options that would
have vested within twelve months of the termination date.
Additionally, on January 3, 2012, the Board approved an Amended and
Restated Change of Control Severance Agreement with Mr. Posedel (the
"Posedel Severance Agreement"), which Posedel Severance Agreement
supersedes the Change of Control Severance Agreement previously entered
into between Mr. Posedel and the Company dated January 24, 2001. Pursuant
to the Posedel Severance Agreement, if Mr. Posedel is terminated as a
result of an Involuntary Termination prior to the expiration of his two
(2) year term of employment, he shall be entitled to full vesting of all
outstanding stock options as well as a lump sum payment equal to the
balance of his base salary remaining for his two (2) year employment term.
Further, if Mr. Posedel is terminated as a result of an Involuntary
Termination (as such term is defined in the Posedel Severance Agreement)
within twelve (12) months following a Change of Control (as such term is
defined in the Posedel Severance Agreement), Mr. Posedel is entitled to
full vesting of all outstanding stock options as well as a lump sum payment
equal to the greater of (a) the balance of his base salary remaining for
his two (2) year employment term or (b) eighteen (18) months of his base
salary.
The full texts of the Erickson Severance Agreement and the Posedel
Severance Agreement are attached to this Form 8-K as Exhibits 10.3 and
10.4, respectively. This description is qualified by reference to the
actual text of such agreements.
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN
FISCAL YEAR.
In connection with Mr. Erickson's appointment to the Board, on
January 3, 2012 the Board amended Article III, Section 3.2 of the Company's
bylaws to increase the exact number of directors of the Company from six
(6) to seven (7). The bylaws as amended are filed as Exhibit 3.1 hereto
and are incorporated herein by reference.
ITEM 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
----------- -----------
3.1 Bylaws of Aehr Test Systems as amended through
January 3, 2012.
10.1 Offer Letter dated January 3, 2012, between the
Company and Gayn Erickson.
10.2 Offer Letter dated January 3, 2012, between the
Company and Rhea Posedel.
10.3 Change of Control Severance Agreement dated
January 3, 2012, between the Company and Gayn
Erickson.
10.4 Amended and Restated Change of Control
Severance Agreement dated January 3, 2012,
between the Company and Rhea J. Posedel.
99.1 Press Release of Aehr Test Systems dated
January 3, 2012 entitled "Aehr Test Systems
Appoints Gayn Erickson As New CEO."
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Aehr Test Systems
(Registrant)
Date: January 9, 2012
By: /S/ GARY L. LARSON
-------------------------
Gary L. Larson
Vice President of Finance and
Chief Financial Officer
EX-3.1
2
ex31.txt
EXHIBIT 3.1
BY-LAWS
OF
AEHR TEST SYSTEMS
(As Amended on January 3, 2012)
ARTICLE I
CORPORATE OFFICES
1.1 PRINCIPAL OFFICE.
The board of directors shall fix the location of the
principal executive office of the corporation at any place within
or outside the State of California. If the principal executive
office is located outside such state, and the corporation has one
or more business offices in such state, the board of directors
shall fix and designate a principal business office in the State
of California.
1.2 OTHER OFFICES.
The board of directors may at any time establish branch or
subordinate offices at any place or places where the corporation
is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 PLACE OF MEETINGS.
Meetings of shareholders shall be held at any place within
or outside the State of California designated by the board of
directors. In the absence of any such designation, shareholders'
meetings shall be held at the principal executive office of the
corporation.
2.2 ANNUAL MEETING.
The annual meeting of shareholders shall be held each year
on a date and at a time designated by the board of directors. In
the absence of such designation, the annual meeting of
shareholders shall be held on the first Wednesday of October in
each year at 4:00 p.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and
place on the next succeeding full business day. At the meeting,
directors shall be elected, and any other proper business may be
transacted.
2.3 SPECIAL MEETING.
A special meeting of the shareholders may be called at any
time by the board of directors, or by the chairman of the board,
or by the president, or by one or more shareholders holding
shares in the aggregate entitled to cast not less than ten
percent (10%) of the votes at that meeting.
If a special meeting is called by any person or persons
other than the board of directors, the request shall be in
writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic
or other facsimile transmission to the chairman of the board, the
president, any vice president or the secretary of the
corporation. The officer receiving the request shall cause
notice to be promptly given to the shareholders entitled to vote,
in accordance with the provisions of Sections 2.4 and 2.5 of
these by-laws, that a meeting will be held at the time requested
by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt
of the request. If the notice is not given within twenty (20)
days after receipt of the request, the person or persons
requesting the meeting may give the notice. Nothing contained in
this paragraph of this Section 2.3 shall be construed as
limiting, fixing or affecting the time when a meeting of
shareholders called by action of the board of directors may be
held.
2.4 NOTICE OF SHAREHOLDERS' MEETINGS.
All notices of meetings of shareholders shall be sent or
otherwise given in accordance with Section 2.5 of these by-laws
not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall specify the place, date
and hour of the meeting and (i) in the case of a special meeting,
the general nature of the business to be transacted (no business
other than that specified in the notice may be transacted) or
(ii) in the case of the annual meeting, those matters which the
board of directors, at the time of giving the notice, intends to
present for action by the shareholders. The notice of any
meeting at which directors are to be elected shall include the
name of any nominee or nominees whom, at the time of the notice,
management intends to present for election.
If action is proposed to be taken at any meeting for
approval of (i) a contract or transaction in which a director has
a direct or indirect financial interest, pursuant to Section 310
of the Corporations Code of California (the "Code"), (ii) an
amendment of the articles of incorporation, pursuant to
Section 902 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, (iv) a
voluntary dissolution of the corporation, pursuant to
Section 1900 of the Code, or (v) a distribution in dissolution
other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of the Code, the notice shall
also state the general nature of that proposal.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given either
personally or by first-class mail or telegraphic or other written
communication, charges prepaid, addressed to the shareholder at
the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for
the purpose of notice. If no such address appears on the
corporation's books or is
-2-
given, notice shall be deemed to have
been given if sent to that shareholder by first-class mail or
telegraphic or other written communication to the corporation's
principal executive office, or if published at least once in a
newspaper of general circulation in the county where that office
is located. Notice shall be deemed to have been given at the
time when delivered personally or deposited in the mail or sent
by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of
that shareholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is
unable to deliver the notice to the shareholder at that address,
all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available to
the shareholder on written demand of the shareholder at the
principal executive office of the corporation for a period of one
(1) year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting, executed by the secretary,
assistant secretary or any transfer agent of the corporation
giving the notice, shall be prima facie evidence of the giving of
such notice.
2.6 QUORUM.
The presence in person or by proxy of the holders of a
majority of the shares entitled to vote thereat constitutes a
quorum for the transaction of business at all meetings of
shareholders. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken
(other than adjournment) is approved by at least a majority of
the shares required to constitute a quorum.
2.7 ADJOURNED MEETING; NOTICE.
Any shareholders' meeting, annual or special, whether or
not a quorum is present, may be adjourned from time to time by
the vote of the majority of the shares represented at that
meeting, either in person or by proxy, but in the absence of a
quorum, no other business may be transacted at that meeting,
except as provided in Section 2.6 of these by-laws.
When any meeting of shareholders, either annual or special,
is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place are announced at
the meeting at which the adjournment is taken, unless a new
record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date
set for the original meeting, in which case notice of the
adjourned meeting shall be given. Notice of any such adjourned
meeting shall be given to each shareholder of record entitled to
vote at the adjourned meeting in accordance with the provisions
of Sections 2.4 and 2.5 of these by-laws. At any adjourned
meeting the corporation may transact any business which might
have been transacted at the original meeting.
-3-
2.8 VOTING.
The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the
provisions of Section 2.11 of these by-laws, subject to the
provisions of Sections 702 to 704, inclusive, of the Code
(relating to voting shares held by a fiduciary, in the name of a
corporation or in joint ownership).
The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by
ballot if demanded by any shareholder before the voting has
begun.
On any matter other than the election of directors, any
shareholder may vote part of the shares in favor of the proposal
and refrain from voting the remaining shares or vote them against
the proposal, but, if the shareholder fails to specify the number
of shares which the shareholder is voting affirmatively, it will
be conclusively presumed that the shareholder's approving vote is
with respect to all shares which the shareholder is entitled to
vote.
If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to
vote on any matter (other than the election of directors) shall
be the act of the shareholders, unless the vote of a greater
number, or voting by classes, is required by the Code or by the
articles of incorporation.
At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e.
cast for any one or more candidates a number of votes greater
than the number of the shareholder's shares) unless the
candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice
prior to commencement of the voting of the shareholder's
intention to cumulate votes. If any shareholder has given such a
notice, then every shareholder entitled to vote may cumulate
votes for candidates placed in nomination and give one candidate
a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which that shareholder's
shares are entitled, or distribute the shareholder's votes on the
same principle among any or all of the candidates, as the
shareholder thinks fit. The candidates receiving the highest
number of votes, up to the number of directors to be elected,
shall be elected.
2.9 VALIDATION OF MEETINGS: WAIVER OF NOTICE; CONSENT.
The transactions of any meeting of shareholders, either
annual or special, however called and noticed, and wherever held,
shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person
or by proxy, and if, either before or after the meeting, each
person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to the
holding of the meeting or an approval of the minutes thereof.
The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any annual or special
meeting of shareholders, except that if action is taken or
proposed to be taken for approval of any of those matters
specified in the second paragraph of Section 2.4 of these by-
laws, the waiver of notice or consent shall state the general
nature of the proposal. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the
minutes of the meeting.
-4-
Attendance by a person at a meeting shall also constitute a
waiver of notice of that meeting, except when the person objects,
at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened,
and except that attendance at a meeting is not a waiver of any
right to object to the consideration of a matter not included in
the notice of the meeting, if that objection is expressly made at
the meeting.
2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING.
Any action which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and
without prior notice, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding shares
having not less than the minimum number of votes that would be
necessary to authorize or take that action at a meeting at which
all shares entitled to vote on that action were present and
voted.
In the case of election of directors, such a consent shall
be effective only if signed by the holders of all outstanding
shares entitled to vote for the election of directors; provided,
however, that a director may be elected at any time to fill a
vacancy on the board of directors that has not been filled by the
directors, by the written consent of the holders of a majority of
the outstanding shares entitled to vote for the election of
directors.
All such consents shall be maintained in the corporate
records. Any shareholder giving a written consent, or the
shareholder's proxy holders, or a transferee of the shares, or a
personal representative of the shareholder, or their respective
proxy holders, may revoke the consent by a writing received by
the secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have
been filed with the secretary.
If the consents of all shareholders entitled to vote have
not been solicited in writing, and if the unanimous written
consent of all such shareholders shall not have been received,
the secretary shall give prompt notice of the corporate action
approved by the shareholders without a meeting. Such notice
shall be given in the manner specified in Section 2.5 of these
by-laws. In the case of approval of (i) a contract or
transaction in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Code,
(ii) indemnification of a corporate "agent", pursuant to
Section 317 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, and (iv) a
distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, pursuant to Section 2007
of the Code, the notice shall be given at least ten (10) days
before the consummation of any action authorized by that
approval.
2.11 RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING
CONSENTS.
For purposes of determining the shareholders entitled to
notice of any meeting or to vote thereat or entitled to give
consent to corporate action without a meeting, the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days nor less than ten (10) days before the
date of any such meeting nor more than sixty (60) days before any
such action without a meeting, and in such event only
shareholders of record on the date so fixed are entitled to
-5-
notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided
in the Code.
If the board of directors does not so fix a record date:
(a) the record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining shareholders
entitled to give consent to corporate action in writing without a
meeting, (i) when no prior action by the board has been taken,
shall be the day on which the first written consent is given or
(ii) when prior action by the board has been taken, shall be the
day on which the board adopts the resolution relating to that
action, or the sixtieth (60th) day before the date of such other
action, whichever is later.
The record date for any other purpose shall be as provided
in Article VIII of these by-laws.
2.12 PROXIES.
Every person entitled to vote for directors, or on any
other matter, shall have the right to do so either in person or
by one or more agents authorized by a written proxy signed by the
person and filed with the secretary of the corporation. A proxy
shall be deemed signed if the shareholder's name is placed on the
proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which
does not state that it is irrevocable shall continue in full
force and effect unless (i) revoked by the person executing it,
before the vote pursuant to that proxy, by a writing delivered to
the corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and
voting in person by, the person executing the proxy or
(ii) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote
pursuant to that proxy is counted; provided, however, that no
proxy shall be valid after the expiration of eleven (11) months
from the date of the proxy, unless otherwise provided in the
proxy. The revocability of a proxy that states on its face that
it is irrevocable shall be governed by the provisions of
Sections 705(e) and 705(f) of the Code.
2.13 INSPECTORS OF ELECTION.
Before any meeting of shareholders, the board of directors
may appoint an inspector or inspectors of election to act at the
meeting or its adjournment. If no inspector of election is so
appointed, the chairman of the meeting may, and on the request of
any shareholder or a shareholder's proxy shall, appoint an
inspector or inspectors of election to act at the meeting. The
number of inspectors shall be either one (1) or three (3). If
inspectors are appointed at a meeting pursuant to the request of
one (1) or more shareholders or proxies, the holders of a
majority of shares or their proxies present at the meeting shall
determine whether one (1) or three (3) inspectors are to be
appointed. If any person appointed as inspector fails to appear
or fails or refuses to act, the chairman
-6-
of the meeting may, and upon the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(a) Determine the number of shares outstanding and
the voting power of each, the number of shares represented at the
meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions
in any way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
3.1 POWERS.
Subject to the provisions of the Code and any limitations
in the articles of incorporation and these by-laws relating to
action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by
or under the direction of the board of directors.
3.2 NUMBER AND QUALIFICATION OF DIRECTORS.
The number of directors of the corporation shall be not
less than four (4) nor more than seven (7). The exact number of
directors shall be seven (7) until changed, within the limits
specified above, by a by-law amending this Section 3.2, duly
adopted by the board of directors or by the shareholders. The
indefinite number of directors may be changed, or a definite
number fixed without provision for an indefinite number, by a
duly adopted amendment to this by-law duly adopted by the vote or
written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that an amendment
reducing the number of the minimum number of directors to a
number less than five (5) cannot be adopted if the votes cast
against its adoption at a meeting of the shareholders, or the
shares not consenting in the case of action by written consent,
are equal to more than sixteen and two-thirds percent (16 2/3%)
of the outstanding shares entitled to
-7-
vote thereon. No amendment may change the stated maximum number of
authorized directors to a number greater than two (2) times the
stated minimum number of directors minus one (1).
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of
shareholders to hold office until the next such annual meeting.
Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which
elected and until a successor has been elected and qualified.
3.4 VACANCIES.
Vacancies in the board of directors may be filled by a
majority of the remaining directors, though less than a quorum,
or by a sole remaining director, except that a vacancy created by
the removal of a director by the vote or written consent of the
shareholders or by court order may be filled only by the vote of
a majority of the shares entitled to vote thereon represented at
a duly held meeting at which a quorum is present, or by the
written consent of holders of a majority of the outstanding
shares entitled to vote thereon. Each director so elected shall
hold office until the next annual meeting of the shareholders and
until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be
deemed to exist in the event of the death, resignation or removal
of any director, or if the board of directors by resolution
declares vacant the office of a director who has been declared of
unsound mind by an order of court or convicted of a felony, or if
the authorized number of directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the number of
directors to be elected at that meeting.
The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the
directors, but any such election, if by written consent, shall
require the consent of the holders of a majority of the
outstanding shares entitled to vote thereon.
Any director may resign effective on giving written notice
to the chairman of the board, the president, the secretary or the
board of directors, unless the notice specifies a later time for
that resignation to become effective. If the resignation of a
director is effective at a future time, the board of directors
may elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of directors shall
have the effect of removing any director before that director's
term of office expires.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
Regular meetings of the board of directors may be held at
any place within or outside the State of California that has been
designated from time to time by resolution of the board. In the
absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special
meetings of the board may be held at any place within or outside
the State of California that has been designated in the notice of
the meeting or, if not stated in the notice or if there is no
notice, at the principal executive office of the corporation.
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Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another; and
all such directors shall be deemed to be present in person at the
meeting.
3.6 REGULAR MEETINGS.
Regular meetings of the board of directors may be held
without notice if the times of such meetings are fixed by the
board of directors.
3.7 SPECIAL MEETINGS.
Special meetings of the board of directors for any purpose
or purposes may be called at any time by the chairman of the
board, the president, any vice president, the secretary or any
two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail or telegram, charges prepaid, addressed to each
director at that director's address as it is shown on the records
of the corporation. If the notice is mailed, it shall be
deposited in the United States mail at least four (4) days before
the time of the holding of the meeting. If the notice is
delivered personally, or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph company
at least forty-eight (48) hours before the time of the holding of
the meeting. Any oral notice given personally or by telephone
may be communicated either to the director or to a person at the
office of the director who the person giving the notice has
reason to believe will promptly communicate it to the director.
The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive
office of the corporation.
3.8 QUORUM.
A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to
adjourn as provided in Section 3.10 of these by-laws. Every act
or decision done or made by a majority of the directors present
at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the
provisions of Section 310 of the Code (as to approval of
contracts or transactions in which a director has a direct or
indirect material financial interest), Section 311 of the Code
(as to appointment of committees) and Section 317(e) of the Code
(as to indemnification of directors).
A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
3.9 WAIVER OF NOTICE.
The transactions of any meeting of the board of directors,
however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the
meeting, each of the directors not present signs a written waiver
of notice, a consent to holding the meeting or an approval of the
minutes thereof. The
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waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents
and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting. Notice of a meeting shall
also be deemed given to any director who attends the meeting
without protesting, before or at its commencement, the lack of
notice to that director.
3.10 ADJOURNMENT.
A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time
and place.
3.11 NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an adjourned
meeting need not be given, unless the meeting is adjourned for
more than twenty-four (24) hours, in which case notice of the
time and place shall be given before the time of the adjourned
meeting, in the manner specified in Section 3.7 of these by-laws,
to the directors who were not present at the time of the
adjournment.
3.12 ACTION WITHOUT MEETING.
Any action required or permitted to be taken by the board
of directors may be taken without a meeting, if all members of
the board shall individually or collectively consent in writing
to that action. Such action by written consent shall have the
same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof
shall be filed with the minutes of the proceedings of the board.
3.13 FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement
of expenses, as may be fixed or determined by resolution of the
board of directors. This Section 3.13 shall not be construed to
preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise, and
receiving compensation for those services.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The board of directors may, by resolution adopted by a
majority of the authorized number of directors, designate one (1)
or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one
(1) or more directors as alternate members of any committee, who
may replace any absent member at any meeting of the committee.
Any committee, to the extent provided in the resolution of the
board, shall have all the authority of the board, except with
respect to:
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(a) the approval of any action which, under the
Code, also requires shareholders' approval or approval of the
outstanding shares;
(b) the filling of vacancies in the board of
directors or in any committee;
(c) the fixing of compensation of the directors for
serving on the board or any committee;
(d) the amendment or repeal of these by-laws or the
adoption of new by-laws;
(e) the amendment or repeal of any resolution of
the board of directors which by its express terms is not so
amendable or repealable;
(f) a distribution to the shareholders of the
corporation, except at a rate or in a periodic amount or within a
price range determined by the board of directors; or
(g) the appointment of any other committees of the
board of directors or the members of such committees.
4.2 MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be governed by,
and held and taken in accordance with, the provisions of
Article III of these by-laws, Section 3.5 (place of meetings),
Section 3.6 (regular meetings), Section 3.7 (special meetings and
notice), Section 3.8 (quorum.), Section 3.9 (waiver of notice),
Section 3.10 (adjournment), Section 3.11 (notice of adjournment)
and Section 3.12 (action without meeting), with such changes in
the context of those by-laws as are necessary to substitute the
committee and its members for the board of directors and its
members, except that the time of regular meetings of committees
may be determined either by resolution of the board of directors
or by resolution of the committee; special meetings of committees
may also be called by resolution of the board of directors; and
notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all
meetings of the committee. The board of directors may adopt
rules for the government of any committee not inconsistent with
the provisions of these by-laws.
ARTICLE V
OFFICERS
5.1 OFFICERS.
The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may
also have, at the discretion of the board of directors, a
chairman of the board, one or more vice presidents, one or more
assistant secretaries, one or more assistant treasurers, and such
other officers as may be appointed in accordance with the
provisions of Section 5.3 of these by-laws. Any number of
offices may be held by the same person.
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5.2 ELECTION OF OFFICERS.
The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 5.3
or Section 5.5 of these by-laws, shall be chosen by the board,
subject to the rights, if any, of an officer under any contract
of employment.
5.3 SUBORDINATE OFFICERS.
The board of directors may appoint, or may empower the
president to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are
provided in these by-laws or as the board of directors may from
time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with
or without cause, by the board of directors at any regular or
special meeting of the board or, except in case of an officer
chosen by the board of directors, by any officer upon whom such
power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice
to the corporation. Any resignation shall take effect at the
date of the receipt of that notice or at any later time specified
in that notice; and, unless otherwise specified in that notice,
the acceptance of the resignation shall not be necessary to make
it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which
the officer is a party.
5.5 VACANCIES IN OFFICES.
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in
the manner prescribed in these by-laws for regular appointments
to that office.
5.6 CHAIRMAN OF THE BOARD.
The chairman of the board, if such an officer be elected,
shall, if present, preside at meetings of the board of directors
and exercise and perform such other powers and duties as may be
from time to time assigned to him by the board of directors or
prescribed by these by-laws. If there is no president, the
chairman of the board shall also be the chief executive officer
of the corporation and shall have the powers and duties
prescribed in Section 5.7 of these by-laws.
5.7 PRESIDENT.
Subject to such supervisory powers, if any, as may be given
by the board of directors to the chairman of the board, if there
be such an officer, the president shall be the chief executive
officer of the corporation and shall, subject to the control of
the board of directors, have general supervision, direction and
control of the business and the officers of the corporation. He
shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be none, at
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all meetings of the board of directors. He shall have the general
powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and
duties as may be prescribed by the board of directors or these
bylaws.
5.8 VICE PRESIDENTS.
In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the board
of directors or, if not ranked, a vice president designated by
the board of directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them
respectively by the board of directors, these by-laws, the
president or the chairman of the board.
5.9 SECRETARY.
The secretary shall keep or cause to be kept, at the
principal executive office of the corporation, or such other
place as the board of directors may direct, a book of minutes of
all meetings and actions of directors, committees of directors,
and shareholders, with the time and place of holding, whether
regular or special (and, if special, how authorized and the
notice given), the names of those present at directors' meetings
or committee meetings, the number of shares present or
represented at shareholders' meetings, and the proceedings
thereof.
The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of
the corporation's transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a
duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares,
and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of
all meetings of the shareholders and of the board of directors
required by these by-laws or by law to be given, and he shall
keep the seal of the corporation, if one be adopted, in safe
custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these
by-laws.
5.10 CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions
of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer shall deposit all money and
other valuables in the name and to the credit of the corporation
with such depositaries as may be designated by the board of
directors. He shall disburse the funds of the corporation as may
be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of
all of his transactions as chief
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financial officer and of the
financial condition of the corporation, and shall have such other
powers and perform such other duties as may be prescribed by the
board of directors or these by-laws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, AND OFFICERS, EMPLOYEES
AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The corporation shall, to the maximum extent and in the
manner permitted by the Code, indemnify each of its directors and
officers against expenses (as defined in Section 317(a) of the
Code), judgments, fines, settlements, and other amounts actually
and reasonably incurred in connection with any proceeding (as
defined in Section 317(a) of the Code), arising by reason of the
fact that such person is or was an agent of the corporation. For
purposes of this Article VI, a "director" or "officer" of the
corporation includes any person (i) who is or was a director or
officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS.
The corporation shall have the power, to the extent and in
the manner permitted by the Code, to indemnify each of its
employees and agents (other than directors and officers) against
expenses (as defined in Section 317(a) of the Code), judgments,
fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section
317(a) of the Code), arising by reason of the fact that such
person is or was an agent of the corporation. For purposes of
this Article VI, an "employee" or "agent" of the corporation
(other than a director or officer) includes any person (i) who is
or was an employee or agent of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation.
6.3 PAYMENT OF EXPENSES IN ADVANCE.
Expenses incurred in defending any civil or criminal action
or proceeding for which indemnification is required pursuant to
Section 6.1 or for which indemnification is permitted pursuant to
Section 6.2 following authorization thereof by the Board of
Directors shall be paid by the corporation in advance of the
final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the indemnified party to repay
such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified as authorized
in this Article VI.
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6.4 INDEMNITY NOT EXCLUSIVE.
The indemnification provided by this Article VI shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another
capacity while holding such office, to the extent that such
additional rights to indemnification are authorized in the
Articles of Incorporation.
6.5 INSURANCE INDEMNIFICATION.
The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against
any liability asserted against or incurred by such person in such
capacity or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article VI.
6.6 CONFLICTS.
No indemnification or advance shall be made under this
Article VI, except where such indemnification or advance is
mandated by law or the order, judgment or decree of any court of
competent jurisdiction, in any circumstance where it appears:
(a) That it would be inconsistent with a provision
of the Articles of Incorporation, these bylaws, a resolution of
the shareholders or an agreement in effect at the time of the
accrual of the alleged cause of the action asserted in the
proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification;
or
(b) That it would be inconsistent with any
condition expressly imposed by a court in approving a settlement.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, if
either be appointed and as determined by resolution of the board
of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares
held by each shareholder.
A shareholder or shareholders of the corporation holding at
least five percent (5%) in the aggregate of the outstanding
voting shares of the corporation or who holds at least one
percent (1%) of such voting shares and has filed a Schedule 14B
with the Securities and Exchange Commission relating to the
election of directors, may (i) inspect and copy the records of
shareholders' names and addresses and shareholdings during usual
business hours on five (5) days' prior written demand on
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the corporation, (ii) obtain from the transfer agent of the
corporation, on written demand and on the tender of such transfer
agent's usual charges for such list, a list of the names and
addresses of the shareholders who are entitled to vote for the
election of directors, and their shareholdings, as of the most
recent record date for which that list has been compiled or as of
a date specified by the shareholder after the date of demand.
Such list shall be made available to any such shareholder by the
transfer agent on or before the later of five (5) days after the
demand is received or five (5) days after the date specified in
the demand as the date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection
on the written demand of any shareholder or holder of a voting
trust certificate, at any time during usual business hours, for a
purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate.
Any inspection and copying under this Section 7.1 may be
made in person or by an agent or attorney of the shareholder or
holder of a voting trust certificate making the demand.
7.2 MAINTENANCE AND INSPECTION OF BY-LAWS.
The corporation shall keep at its principal executive
office, or if its principal executive office is not in the State
of California, at its principal business office in such state,
the original or a copy of these by-laws as amended to date, which
bylaws shall be open to inspection by the shareholders at all
reasonable times during office hours. If the principal executive
office of the corporation is outside the State of California and
the corporation has no principal business office in such state,
the secretary shall, upon the written request of any shareholder,
furnish to that shareholder a copy of these by-laws as amended to
date.
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE
RECORDS.
The accounting books and records, and the minutes of
proceedings of the shareholders and the board of directors and
any committee or committees of the board of directors, shall be
kept at such place or places designated by the board of directors
or, in absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept in written
form and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into
written form.
The minutes and accounting books and records shall be open
to inspection upon the written demand of any shareholder or
holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a
voting trust certificate. The inspection may be made in person
or by an agent or attorney, and shall include the right to copy
and make extracts. Such rights of inspection shall extend to the
records of each subsidiary corporation of the corporation.
7.4 INSPECTION BY DIRECTORS.
Every director shall have the absolute right at any
reasonable time to inspect all books, records and documents of
every kind and the physical properties of the corporation and
each of its
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subsidiary corporations. Such inspection by a
director may be made in person or by an agent or attorney, and
the right of inspection includes the right to copy and make
extracts of documents.
7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER.
The board of directors shall cause an annual report to be
sent to the shareholders not later than one hundred twenty (120)
days after the close of the fiscal year adopted by the
corporation. Such report shall be sent at least fifteen (15)
days before the annual meeting of shareholders to be held during
the next fiscal year and in the manner specified in Section 2.5
of these by-laws for giving notice to shareholders of the
corporation.
The annual report shall contain a balance sheet as of the
end of the fiscal year and an income statement and statement of
changes in financial position for the fiscal year, accompanied by
any report of independent accountants or, if there is no such
report, the certificate of an authorized officer of the
corporation that the statements were prepared without audit from
the books and records of the corporation.
The foregoing requirement of an annual report may be waived
by the board so long as the shares of the corporation are held by
less than one hundred (100) holders of record.
7.6 FINANCIAL STATEMENTS.
A copy of any annual financial statement and any income
statement of the corporation for each quarterly period of each
fiscal year, and any accompanying balance sheet of the
corporation as of the end of each such period, that has been
prepared by the corporation shall be kept on file in the
principal executive office of the corporation for twelve (12)
months; and each such statement shall be exhibited at all
reasonable times to any shareholder demanding an examination of
any such statement or a copy shall be mailed to any such
shareholder.
If a shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of stock of
the corporation makes a written request to the corporation for an
income statement of the corporation for the three-month, six-
month or nine-month period of the then current fiscal year ended
more than thirty (30) days before the date of the request, and
for a balance sheet of the corporation as of the end of that
period, the chief financial officer shall cause that statement to
be prepared, if not already prepared, and shall deliver
personally or mail that statement or statements to the person
making the request within thirty (30) days after the receipt of
the request. If the corporation has not sent to the shareholders
its annual report for the last fiscal year, such report shall
likewise be delivered or mailed to the shareholder or
shareholders within thirty (30) days after the request.
The corporation shall also, on the written request of any
shareholder, mail to the shareholder a copy of the last annual,
semi-annual or quarterly income statement which it has prepared,
and a balance sheet as of the end of that period.
The quarterly income statements and balance sheets referred
to in this section shall be accompanied by the report, if any, of
any independent accountants engaged by the corporation or the
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certificate of an authorized officer of the corporation that the
financial statements were prepared without audit from the books
and records of the corporation.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND
VOTING.
For purposes of determining the shareholders entitled to
receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in
respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action, and in that
case only shareholders of record on the date so fixed are
entitled to receive the dividend, distribution or allotment of
rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise
provided in the Code.
If the board of directors does not so fix a record date,
the record date for determining shareholders for any such purpose
shall be at the close of business on the day on which the board
adopts the applicable resolution or the sixtieth (60th) day
before the date of that action, whichever is later.
8.2 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS.
All checks, drafts, or other orders for payment of money,
notes, or other evidences of indebtedness, issued in the name of
or payable to the corporation, shall be signed or endorsed by
such person or persons and in such manner as, from time to time,
shall be determined by resolution of the board of directors.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED.
The board of directors, except as otherwise provided in
these by-laws, may authorize any officer or officers, or agent or
agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
8.4 CERTIFICATES FOR SHARES.
A certificate or certificates for shares of the corporation
shall be issued to each shareholder when any of such shares are
fully paid, and the board of directors may authorize the issuance
of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be
paid for them and the amount paid. All certificates shall be
signed in the name of
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the corporation by the chairman or vice
chairman of the board or the president or a vice president and by
the chief financial officer or an assistant treasurer or the
secretary or any assistant secretary, certifying the number of
shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on a
certificate has ceased to be that such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
Nothwithstanding the foregoing paragraph, the corporation
may adopt a system of issuance, recordation and transfer of its
shares by electronic or other means not involving any issuance of
certificates, including provisions for notice to purchasers in
substitution for the required statements on certificates under
Sections 417, 418 and 1302 of the Code, and as may be required by
the commissioner in administering the California Corporate
Securities Law of 1968, which system (1) has been approved by the
United States Securities and Exchange Commission, (2) is
authorized in any statute of the United States, or (3) is in
accordance with Division 8 of the California Commercial Code.
Any system so adopted shall not become effective as to issued and
outstanding certificated securities until the certificates
therefor have been surrendered to the corporation.
8.5 LOST CERTIFICATES.
Except as provided in this Section 8.5, no new certificates
for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation
and cancelled at the same time. The board of directors may, in
case any share certificate or certificate for any other security
is lost, stolen or destroyed, authorize the issuance of
replacement certificates on such terms and conditions as the
board may require, including provision for indemnification of the
corporation secured by a bond or other adequate security
sufficient to protect the corporation against any claim that may
be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction of the
certificate or the issuance of the replacement certificate.
8.6 CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the general
provisions, rules of construction and definitions in the Code
shall govern the construction of these by-laws. Without limiting
the generality of this provision, the singular number includes
the plural, the Plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
9.1 AMENDMENT BY SHAREHOLDERS.
New by-laws may be adopted or these by-laws may be amended
or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided,
-19-
however, that if the articles of incorporation of the corporation
set forth the number of authorized directors of the corporation,
the authorized number of directors may be changed only by an
amendment of the articles of incorporation.
9.2 AMENDMENT BY DIRECTORS.
Subject to the rights of the shareholders as provided in
Section 9.1 of these by-laws, by-laws, other than a by-law or an
amendment of a by-law changing the authorized number of directors
(except to fix the authorized number of directors pursuant to a
by-law providing for a variable number of directors), may be
adopted, amended, or repealed by the board of directors.
-20-
EX-10.1
3
ex101.txt
EXHIBIT 10.1
January 3, 2012
Gayn Erickson
5231 Apennines Circle
San Jose, Ca. 95138
Dear Gayn:
I am pleased to extend to you this offer as the President and
Chief Executive Officer of Aehr Test Systems (the "Company"),
a full-time, exempt position. We would like your start date to
be January 3, 2012, or such other date as you and the Company
mutually agree in writing (the "Start Date"). You will be
reporting to the Board of Directors. The terms of your offer
are as follows:
Base Salary: $22,916.66 per month ($275,000 annualized).
Annual Bonus: Starts at 40% of Base Salary, with a maximum of
80% of Base Salary.
Fiscal Year 2012 A prorated 5 month bonus for the fiscal year
Bonus ended May 31, 2012, with a target level of
$45,800, 90% of which is guaranteed.
Stock Options: 400,000 shares of the Company's Common Stock.
Stock options have a 4-year vesting period
(1/48th per month). Your stock option is
subject to applicable federal and state
securities laws, the terms of the Company's
2006 Equity Incentive Plan and Stock Option
Agreement, and approval by our Board of
Directors.
You will be eligible for group medical, dental, life insurance, long
term disability coverage, participation in the Employee Stock
Purchase Plan and other benefits available to employees of our
company. As a member of our executive staff, you will be enrolled in
the Execu-Care Medical Insurance Plan which provides supplemental
health coverage. You will accrue vacation at the rate of four weeks
per year. You will also participate in our company's Employee Stock
Bonus Plan, and after 90 days will be able to participate in our
401(k) plan.
In addition, you will be eligible for the severance benefits set
forth in the Change of Control and Severance Agreement, substantially
in the form attached hereto as Exhibit A, which will be entered into
as of the Start Date. Your employment with the Company is for no
specified period and constitutes "at-will" employment. As a result,
you are free to terminate your employment at any time, for any reason
or for no reason. Similarly, subject to the provisions of the Change
of Control and Severance Agreement, the Company is free to terminate
your employment at any time, for any reason or for no reason. We
request that you give the Company at least sixty (60) days' notice in
the event of a resignation.
As a condition of your employment, you are also required to sign and
comply with the Company's standard form of employee proprietary
information agreement, which requires, among other provisions, the
assignment of patent rights to any invention made during your
employment at the Company, and non-disclosure of Company proprietary
information.
We look forward to having you join Aehr Test Systems. Please call me
should you have any questions.
Sincerely,
/S/ RHEA POSEDEL
Rhea Posedel
CEO and Chairman
Upon acceptance, please return original copy of letter to Human
Resources, Aehr Test Systems.
Accepted: /S/ GAYN ERICKSON
-----------------
Gayn Erickson
-2-
EXHIBIT A
Change of Control and Severance Agreement
-3-
EX-10.2
4
ex102.txt
EXHIBIT 10.2
[LOGO]AEHR TEST SYSTEMS
January 3, 2012
Rhea J. Posedel
Dear Mr. Posedel:
I am pleased to offer you a position with Aehr Test Systems (the
"Company") as its Executive Chairman, reporting to the Company's Board
of Directors. You will receive a yearly salary of $236,000, which will
be paid semi-monthly in accordance with the Company's normal payroll
procedures. In this capacity, you will continue to receive certain
employee benefits, including group medical, dental, life insurance, long
term disability coverage and participation in the 2012 annual bonus plan
at a target rate starting at up to 12.5% of your yearly salary. In
addition you will also be eligible for stock option grants pursuant to
the Company's 2006 Equity Incentive Plan and Employee Stock Bonus Plan,
as shall be determined from time to time by the Compensation Committee
of the Board of Directors. You should note that the Company may modify
job titles, salaries and benefits from time to time as it deems necessary.
The Company is excited about your continuing service and looks forward to a
beneficial and productive relationship.
Your employment with the Company in the role of Executive Chairman
shall be for a minimum term of two (2) years, with your employment
continuing on an at-will basis thereafter.
Please further note that with your acceptance of this offer, the
terms of your Change of Control Severance Agreement dated January 24,
2001 will be amended and superseded by an Amended and Restated Change of
Control Severance Agreement (the "Amended Agreement"). The Amended
Agreement will provide, among other things, that in the case of your
Involuntary Termination (as defined therein) during your two (2) year
term of employment, other than as a result of an Involuntary Termination
within twelve (12) months following a Change of Control (as defined
therein), you will receive the balance of your base salary for your two
(2) year employment term, payable in a lump sum within thirty (30) days
of your Involuntary Termination. Additionally, any stock options
granted by the Company to you prior to your Involuntary Termination will
become fully vested and exercisable as of the date of your
termination to the extent such stock options are outstanding and
unexercisable at the time of your termination.
Further, in the case of your Involuntary Termination at any time
within twelve (12) months after the Change of Control, the Amended
Agreement will provide that you will receive the greater of (a) your
remaining term of employment base salary or (b) eighteen (18) months of
base salary, payable in a lump sum within thirty (30) days of your
Involuntary Termination. Additionally, any stock options granted by the
Company to you prior to the Change of Control and your Involuntary
Termination will become fully vested and exercisable as of the date of
the termination to the extent such stock options are outstanding and
unexercisable at the time of your termination.
You agree that, during the term of your employment with the
Company, you will not engage in any other employment, occupation,
consulting or other business activity directly related to the business
in which the Company is now involved or becomes involved during the term
of your employment, nor will you engage in any other activities that
conflict with your obligations to the Company. Similarly, you agree not
to bring any third party confidential information to the Company and
that in performing your duties for the Company you will not in any way
utilize any such information.
In the event of any dispute or claim relating to or arising out of
our employment relationship, you and the Company agree that (i) any and
all disputes between you and the Company shall be fully and finally
resolved by binding arbitration, (ii) you are waiving any and all rights
to a jury trial but all court remedies will be available in arbitration,
(iii) all disputes shall be resolved by a neutral arbitrator who shall
issue a written opinion, (iv) the arbitration shall provide for adequate
discovery, and (v) the Company shall pay all but the first $125 of the
arbitration fees.
To accept the Company's offer, please sign and date this letter in
the space provided below. A duplicate original is enclosed for your
records. If you accept our offer, your first day of employment will be
January 3, 2012. This letter, along with any agreements relating to
proprietary rights between you and the Company, set forth the terms of
your employment with the Company and supersede any prior representations
or agreements, including, but not limited to, any representations made
during your any negotiations, whether written or oral. This letter may
not be modified or amended except by a written agreement signed by the
Chief Executive Officer of the Company and you.
-2-
We look forward to your favorable reply and to continuing to work
with you at Aehr Test Systems.
Sincerely,
/S/ GARY LARSON
-----------------------
Gary Larson,
Chief Financial Officer
Agreed to and accepted:
Signature: /S/ RHEA J. POSEDEL
-----------------------
Printed Name: RHEA J. POSEDEL
-----------------------
Date: January 3, 2012
Enclosures
Duplicate Original Letter
-3-
EX-10.3
5
ex103.txt
EXHIBIT 10.3
AEHR TEST SYSTEMS
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the "Agreement")
is made and entered into effective as of January 3, 2012 (the
"Effective Date"), by and between Gayn Erickson (the "Employee")
and Aehr Test Systems, a California corporation (the "Company").
Certain capitalized terms used in this Agreement are defined in
Section 1 below.
R E C I T A L S
A. It is expected that the Company from time to time will
consider the possibility of a Change of Control (as defined
herein). The Board of Directors of the Company (the "Board")
recognizes that such consideration can be a distraction to the
Employee and can cause the Employee to consider alternative
employment opportunities.
B. The Board believes that it is in the best interests of
the Company and its shareholders to provide the Employee with an
incentive to continue his employment and to maximize the value of
the Company upon a Change of Control for the benefit of its
shareholders.
C. In order to provide the Employee with enhanced
financial security and sufficient encouragement to remain with the
Company notwithstanding the possibility of a Change of Control, the
Board believes that it is imperative to provide the Employee with
certain severance benefits upon the Employee's termination of
employment following a Change of Control.
AGREEMENT
In consideration of the mutual covenants herein contained and
the continued employment of Employee by the Company, the parties
agree as follows:
1. Definition of Terms. The following terms referred to
in this Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of
personal dishonesty taken by the Employee in connection with his
responsibilities as an employee which is intended to result in
substantial personal enrichment of the Employee, (ii) Employee's
conviction of a felony which the Board reasonably believes has had
or will have a material detrimental effect on the Company's
reputation or business, (iii) a willful act by the Employee which
constitutes misconduct and is injurious to the Company, or (iv)
continued willful violations by the Employee of the Employee's
obligations to the Company after there has been delivered to the
Employee a written demand for performance from the Company which
describes the basis for the Company's belief that the Employee has
not substantially performed his duties.
(b) Change of Control. "Change of Control" shall
mean the occurrence of any of the following events:
(i) a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%)
of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(ii) the approval by the shareholders of the
Company of a plan of complete liquidation of the Company; or
(iii) the sale or disposition by the Company of
all or substantially all of the Company's assets.
(c) Involuntary Termination. "Involuntary
Termination" shall mean (i) without the Employee's express written
consent, a significant reduction of the Employee's duties, position
or responsibilities relative to the Employee's duties, position or
responsibilities in effect immediately prior to such reduction, or
the removal of the Employee from such position, duties and
responsibilities, unless the Employee is provided with comparable
duties, position and responsibilities; (ii) without the Employee's
express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including
office space and location) available to the Employee immediately
prior to such reduction; (iii) without the Employee's express
written consent, a reduction by the Company of the Employee's base
salary or Target Bonus as in effect immediately prior to such
reduction; (iv) without the Employee's express written consent, a
material reduction by the Company in the kind or level of employee
benefits to which the Employee is entitled immediately prior to
such reduction with the result that the Employee's overall benefits
package lacks basic and customary benefits; (v) without the
Employee's express written consent, the relocation of the Employee
to a facility or a location more than fifty (50) miles from his
current location; (vi) any purported termination of the Employee by
the Company which is not effected for Cause or for which the
grounds relied upon are not valid; or (vii) the failure of the
Company to obtain the assumption of this Agreement by any
successors contemplated in Section 6 below.
(d) Termination Date. "Termination Date" shall mean
the effective date of any notice of termination delivered by one
party to the other hereunder.
2. Term of Agreement. This Agreement shall terminate upon
the date that all obligations of the parties hereto under this
Agreement have been satisfied or, if earlier, on the date, prior to
a Change of Control, Employee is no longer employed by the Company.
3. At-Will Employment. The Company and the Employee
acknowledge that the Employee's employment is and shall continue to
be at-will, as defined under applicable law. If the Employee's
employment terminates for any reason, the Employee shall not be
entitled to any payments, benefits, damages, awards or compensation
other than as provided by this Agreement, or as may otherwise be
established under the Company's then existing employee benefit
plans or policies at the time of termination.
-2-
4. Benefits.
(a) Termination Following A Change of Control. If
the Employee's employment with the Company terminates as a result
of an Involuntary Termination at any time within twelve (12) months
after a Change of Control and the Employee signs and does not
revoke a release of claims with the Company (in a form reasonably
acceptable to the Company), Employee shall be entitled to the
following severance benefits:
(i) Eighteen (18) months of Employee's base
salary as in effect as of the date of such termination, less
applicable withholding, payable in a lump sum within thirty (30)
days of the Involuntary Termination;
(ii) Bonus for final period. Employee shall
receive a pro rated bonus for the performance period in which the
Termination occurs (in addition to the amount in section 4.a.i.)
The amount of the bonus shall be equal to the Target Bonus for the
period in which the Termination occured multiplied by a fraction in
which the numerator is the number of days from and including the
first day of the performance period until and including the date of
the Termination and the denominator is the number of days in teh
performance period, less applicable withholding, payable in a lump
sum within thirty (30) days of the Involuntary Termination;
(iii) all stock options granted by the Company to
the Employee prior to the Change of Control shall become fully
vested and exercisable as of the date of the termination to the
extent such stock options are outstanding and unexercisable at the
time of such termination and all stock subject to a right of
repurchase by the Company (or its successor) that was purchased
prior to the Change of Control shall have such right of repurchase
lapse with respect to all of the shares; The Stock Options shall
remain exercisable until the earlier of (a) the 18th month
anniversary of the date of Termination or (b) the expiration of
each option in accordance with its original terms provided.
(iv) the same level of health (i.e., medical,
vision and dental) coverage and benefits as in effect for the
Employee on the day immediately preceding the day of the Employee's
termination of employment; provided, however, that (i) the Employee
constitutes a qualified beneficiary, as defined in Section
4980B(g)(1) of the Internal Revenue Code of 1986, as amended; and
(ii) Employee elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA.
The Company shall continue to provide Employee with health coverage
until the earlier of (i) the date Employee is no longer eligible to
receive continuation coverage pursuant to COBRA, or (ii) twelve
(12) months from the termination date.
(b) Termination Apart from a Change of Control. If
the Employee's employment with the Company terminates as a result
of an Involuntary Termination other than as a result of an
Involuntary Termination within the twelve (12) months following a
Change of Control, then the Employee Employee shall be entitled to
the following severance benefits:
-3-
(i) Twelve (12) months of Employee's base
salary as in effect as of the date of such termination, less
applicable withholding, payable in a lump sum within thirty (30)
days of the Involuntary Termination;
(ii) Bonus for final period. Employee shall
receive a pro rated bonus for the performance period in which the
Termination occurs (in addition to the amount in section 4.b.i.)
The amount of the bonus shall be equal to the Target Bonus for the
period in which the Termination occured multiplied by a fraction in
which the numerator is the number of days from and including the
first day of the performance period until and including the date of
the Termination and the denominator is the number of days in teh
performance period, less applicable withholding, payable in a lump
sum within thirty (30) days of the Involuntary Termination;
(iii) any stock options granted by the Company to
the Employee prior to the Termination that would have vested within
12 months of the Termination date shall become fully vested and
exercisable as of the date of the termination to the extent such
stock options are outstanding and unexercisable at the time of such
termination and all stock subject to a right of repurchase by the
Company (or its successor) that was purchased prior to the Change
of Control shall have such right of repurchase lapse with respect
to all of the shares; The Stock Options shall remain exercisable
until the earlier of (a) the 12th month anniversary of the date of
Termination or (b) the expiration of each option in accordance with
its original terms provided.
(iv) the same level of health (i.e., medical,
vision and dental) coverage and benefits as in effect for the
Employee on the day immediately preceding the day of the Employee's
termination of employment; provided, however, that (i) the Employee
constitutes a qualified beneficiary, as defined in Section
4980B(g)(1) of the Internal Revenue Code of 1986, as amended; and
(ii) Employee elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA.
The Company shall continue to provide Employee with health coverage
until the earlier of (i) the date Employee is no longer eligible to
receive continuation coverage pursuant to COBRA, or (ii) twelve
(12) months from the termination date.
(c) Accrued Wages and Vacation; Expenses. Without
regard to the reason for, or the timing of, Employee's termination
of employment: (i) the Company shall pay the Employee any unpaid
base salary due for periods prior to the Termination Date; (ii) the
Company shall pay the Employee all of the Employee's accrued and
unused vacation through the Termination Date; and (iii) following
submission of proper expense reports by the Employee, the Company
shall reimburse the Employee for all expenses reasonably and
necessarily incurred by the Employee in connection with the
business of the Company prior to the Termination Date. These
payments shall be made promptly upon termination and within the
period of time mandated by law.
5. Limitation on Payments. In the event that the
severance and other benefits provided for in this Agreement or
otherwise payable to the Employee (i) constitute "parachute
payments" within the meaning of Section 280G of the Code, and
(ii) would be subject to the excise tax imposed by Section 4999 of
the Code (the "Excise Tax"), then Employee's benefits under this
Agreement shall be either
-4-
(a) delivered in full, or
(b) delivered as to such lesser extent which would
result in no portion of such benefits being subject to the Excise
Tax,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Employee on an after-tax basis, of
the greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under Section 4999 of the
Code.
Unless the Company and the Employee otherwise agree in
writing, any determination required under this Section shall be
made in writing by the Company's independent public accountants
(the "Accountants"), whose determination shall be conclusive and
binding upon the Employee and the Company for all purposes. For
purposes of making the calculations required by this Section, the
Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Section 280G and 4999
of the Code. The Company and the Employee shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this Section.
6. Successors.
(a) Company's Successors. Any successor to the
Company (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets shall
assume the Company's obligations under this Agreement and agree
expressly to perform the Company's obligations under this Agreement
in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business
and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) Employee's Successors. Without the written
consent of the Company, Employee shall not assign or transfer this
Agreement or any right or obligation under this Agreement to any
other person or entity. Notwithstanding the foregoing, the terms of
this Agreement and all rights of Employee hereunder shall inure to
the benefit of, and be enforceable by, Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
7. Notices.
(a) General. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt
requested and postage
-5-
prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of
the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of
its Secretary.
(b) Notice of Termination. Any termination by the
Company for Cause or by the Employee as a result of a voluntary
resignation or an Involuntary Termination shall be communicated by
a notice of termination to the other party hereto given in
accordance with this Section. Such notice shall indicate the
specific termination provision in this Agreement relied upon, shall
set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination under the provision so
indicated, and shall specify the Termination Date (which shall be
not more than 30 days after the giving of such notice).
8. Arbitration.
(a) Any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or
termination thereof, shall be settled by binding arbitration to be
held in Santa Clara County, California, in accordance with the
National Rules for the Resolution of Employment Disputes then in
effect of the American Arbitration Association (the "Rules"). The
arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court having
jurisdiction.
(b) The arbitrator(s) shall apply California law to
the merits of any dispute or claim, without reference to conflicts
of law rules. The arbitration proceedings shall be governed by
federal arbitration law and by the Rules, without reference to
state arbitration law. Employee hereby consents to the personal
jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are
participants.
(c) Employee understands that nothing in this Section
modifies Employee's at-will employment status. Either Employee or
the Company can terminate the employment relationship at any time,
with or without Cause.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION,
WHICH DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING
ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION,
CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED
TO, THE FOLLOWING CLAIMS:
-6-
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE
OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH
OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND
IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY
FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF
1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS
ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER
LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT
DISCRIMINATION.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be
required to mitigate the amount of any payment contemplated by this
Agreement, nor shall any such payment be reduced by any earnings
that the Employee may receive from any other source.
(b) Waiver. No provision of this Agreement may be
modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Employee and by
an authorized officer of the Company (other than the Employee). No
waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall
be considered a waiver of any other condition or provision or of
the same condition or provision at another time.
(c) Integration. This Agreement and any outstanding
stock option agreements referenced herein represent the entire
agreement and understanding between the parties as to the subject
matter herein and supersede all prior or contemporaneous
agreements, whether written or oral, with respect to the subject
matter of this Agreement and any stock option agreement.
(d) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by
the internal substantive laws, but not the conflicts of law rules,
of the State of California.
(e) Severability. The invalidity or unenforceability
of any provision or provisions of this Agreement shall not affect
the validity or enforceability of any other provision hereof, which
shall remain in full force and effect.
(f) Employment Taxes. All payments made pursuant to
this Agreement shall be subject to withholding of applicable income
and employment taxes.
-7-
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.
-8-
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized
officer, as of the day and year first above written.
COMPANY: AEHR TEST SYSTEMS
By: /S/ RHEA J. POSEDEL
---------------------
Title: Executive Chairman
EMPLOYEE: /s/ GAYN ERICKSON
-------------------
Signature
GAYN ERICKSON
-------------------
Printed Name
-9-
EX-10.4
6
ex104.txt
EXHIBIT 10.4
AEHR TEST SYSTEMS
AMEMDED AND RESTATED CHANGE OF CONTROL SEVERANCE AGREEMENT
This Amended and Restated Change of Control Severance
Agreement (the "Agreement") is made and entered into by and between
Rhea J. Posedel ("Employee") and Aehr Test Systems, a California
corporation (the "Company"), effective as of January 3, 2012 (the
"Effective Date"). The Agreement replaces in its entirety the
Change of Control Severance Agreement previously entered into
between Employee and the Company, which was dated January 24, 2001.
R E C I T A L S
A. It is expected that the Company from time to time will
consider the possibility of a Change of Control. The Board of
Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to the Employee and can cause
the Employee to consider alternative employment opportunities.
B. The Board believes that it is in the best interests of
the Company and its shareholders to provide the Employee with an
incentive to continue his employment and to maximize the value of
the Company upon a Change of Control for the benefit of its
shareholders.
C. In order to provide the Employee with enhanced
financial security and sufficient encouragement to remain with the
Company notwithstanding the possibility of a Change of Control, the
Board believes that it is imperative to provide the Employee with
certain severance benefits upon the Employee's termination of
employment following a Change of Control.
AGREEMENT
In consideration of the mutual covenants herein contained and
the continued employment of Employee by the Company, the parties
agree as follows:
1. Definition of Terms. The following terms referred to in
this Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal
dishonesty taken by the Employee in connection with his
responsibilities as an employee which is intended to result in
substantial personal enrichment of the Employee, (ii) Employee's
conviction of a felony which the Board reasonably believes has had
or will have a material detrimental effect on the Company's
reputation or business, (iii) a willful act by the Employee which
constitutes misconduct and is injurious to the Company, and/or (iv)
continued willful violations by the Employee of the Employee's
obligations to the Company after there has been delivered to the
Employee a written demand for performance from the Company which
describes the basis for the Company's belief that the Employee has
not substantially performed his duties.
(b) Change of Control. "Change of Control" shall mean
the occurrence of any of the following events:
(i) the approval by shareholders of the Company of
a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation;
(ii) the approval by the shareholders of the
Company of a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets;
(iii) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becoming the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total
voting power represented by the Company's then outstanding voting
securities; or
(iv) a change in the composition of the Board, as a
result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date hereof,
or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of those directors
whose election or nomination was not in connection with any
transactions described in subsections (i), (ii), or (iii) or in
connection with an actual or threatened proxy contest relating to
the election of directors of the Company.
(c) Involuntary Termination. "Involuntary Termination"
shall mean (i) without the Employee's express written consent, a
significant reduction of the Employee's duties, position or
responsibilities relative to the Employee's duties, position or
responsibilities in effect immediately prior to such reduction, or
the removal of the Employee from such position, duties and
responsibilities, unless the Employee is provided with comparable
duties, position and responsibilities; provided, however, that a
reduction in duties, position or responsibilities solely by virtue
of the Company being acquired and made part of a larger entity (as,
for example, when the Chief Financial Officer of the Company
remains as such following a Change of Control but is not made the
Chief Financial Officer of the acquiring corporation) shall not
constitute an "Involuntary Termination;" (ii) without the
Employee's express written consent, a substantial reduction,
without good business reasons, of the facilities and perquisites
(including office space and location) available to the Employee
immediately prior to such reduction; (iii) a reduction by the
Company of the Employee's base salary as in effect immediately
prior to such reduction; (iv) a material reduction by the Company
in the kind or level of employee benefits to which the Employee is
entitled immediately prior to such reduction with the result that
the Employee's overall benefits package is significantly reduced;
(v) without the Employee's express written consent, the relocation
of the
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Employee to a facility or a location more than fifty (50) miles
from his current location; (vi) any purported termination of the
Employee by the Company which is not effected for Cause or for
which the grounds relied upon are not valid; or (vii) the failure
of the Company to obtain the assumption of this Agreement by any
successors contemplated in Section 6 below.
(d) Termination Date. "Termination Date" shall mean the
effective date of any notice of termination delivered by one party
to the other hereunder.
2. Term of Agreement. This Agreement shall terminate upon
the date that all obligations of the parties hereto under this
Agreement have been satisfied or, if earlier, on the date, prior to
a Change of Control, Employee is no longer employed by the Company.
3. Term Employment. The Company and the Employee
acknowledge that the Employee's employment is for a minimum term of
two (2) years, with Employee's employment continuing on an at-will
basis thereafter. If the Employee's employment terminates for any
reason, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided by
this Agreement, or as may otherwise be established under the
Company's then existing employee benefit plans or policies at the
time of termination.
4. Severance Benefits.
(a) Involuntary Termination Apart from a Change of
Control. If the Employee's employment with the Company terminates
as a result of an Involuntary Termination during Employee's two (2)
year term of employment, other than as a result of an Involuntary
Termination within twelve (12) months following a Change of
Control, then Employee shall be entitled to the following severance
benefits:
(i) the balance of Employee's base salary for
Employee's two (2) year term of employment, payable in a lump sum
within thirty (30) days of Employee's Involuntary Termination; and
(ii) any stock options granted by the Company to
Employee prior to Employee's Involuntary Termination shall become
fully vested and exercisable as of the date of termination to the
extent such stock options are outstanding and unexercisable at the
time of Employee's termination and all stock subject to a right of
repurchase by the Company (or its successor) that was purchased
prior to the termination shall have such right of repurchase lapse
with respect to all of the shares.
(iii) Employee may elect to forgoe the severance
benefits set forth in Section 4(a)(i) above in favor of receiving
the severance or other benefits (if any) as may then be established
under the Company's then existing severance and benefits plans and
policies at the time of Employee's termination.
(b) Involuntary Termination Following A Change of
Control. If the Employee's employment with the Company terminates
as a result of an Involuntary Termination at any time
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within twelve (12) months after a Change of Control, then Employee
shall be entitled to the following severance benefits:
(i) the greater of (a) Employee's remaining term
of employment base salary or (b) eighteen (18) months of base
salary, payable in a lump sum within thirty (30) days of Employee's
Involuntary Termination;
(ii) all stock options granted by the Company to
the Employee prior to the Change of Control shall become fully
vested and exercisable as of the date of the termination to the
extent such stock options are outstanding and unexercisable at the
time of such termination and all stock subject to a right of
repurchase by the Company (or its successor) that was purchased
prior to the Change of Control shall have such right of repurchase
lapse with respect to all of the shares; and
(iii) the same level of health (i.e., medical,
vision and dental) coverage and benefits as in effect for the
Employee on the day immediately preceding the day of the Employee's
termination of employment; provided, however, that (i) the Employee
constitutes a qualified beneficiary, as defined in Section
4980B(g)(1) of the Internal Revenue Code of 1986, as amended; and
(ii) Employee elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA.
The Company shall continue to provide Employee with health coverage
until the earlier of (i) the date Employee is no longer eligible to
receive continuation coverage pursuant to COBRA, or (ii) twelve
(12) months from the termination date.
(c) Accrued Wages and Vacation; Expenses. Without
regard to the reason for, or the timing of, Employee's termination
of employment: (i) the Company shall pay the Employee any unpaid
base salary due for periods prior to the Termination Date; (ii) the
Company shall pay the Employee all of the Employee's accrued and
unused vacation through the Termination Date; and (iii) following
submission of proper expense reports by the Employee, the Company
shall reimburse the Employee for all expenses reasonably and
necessarily incurred by the Employee in connection with the
business of the Company prior to the Termination Date. These
payments shall be made promptly upon termination and within the
period of time mandated by law.
5. Limitation on Payments. In the event that the severance
and other benefits provided for in this Agreement or otherwise
payable to the Employee (i) constitute "parachute payments" within
the meaning of Section 280G of the Code, and (ii) would be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then Employee's benefits under this Agreement shall be
either
(a) delivered in full, or
(b) delivered as to such lesser extent which would
result in no portion of such benefits being subject to the Excise
Tax,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Employee on an after-tax basis, of
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the greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under Section 4999 of the
Code.
Unless the Company and the Employee otherwise agree in
writing, any determination required under this Section shall be
made in writing by the Company's independent public accountants
(the "Accountants"), whose determination shall be conclusive and
binding upon the Employee and the Company for all purposes. For
purposes of making the calculations required by this Section, the
Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Section 280G and 4999
of the Code. The Company and the Employee shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this Section.
6. Successors.
(a) Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially
all of the Company's business and/or assets shall assume the
Company's obligations under this Agreement and agree expressly to
perform the Company's obligations under this Agreement in the same
manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and/or assets which executes
and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) Employee's Successors. Without the written consent
of the Company, Employee shall not assign or transfer this
Agreement or any right or obligation under this Agreement to any
other person or entity. Notwithstanding the foregoing, the terms of
this Agreement and all rights of Employee hereunder shall inure to
the benefit of, and be enforceable by, Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
7. Notices.
(a) General. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of
the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of
its Secretary.
(b) Notice of Termination. Any termination by the
Company for Cause or by the Employee as a result of a voluntary
resignation or an Involuntary Termination shall be
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communicated by a notice of termination to the other party hereto
given in accordance with this Section. Such notice shall indicate
the specific termination provision in this Agreement relied upon,
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so
indicated, and shall specify the Termination Date (which shall be
not more than 30 days after the giving of such notice). The
failure by the Employee to include in the notice any fact or
circumstance which contributes to a showing of Involuntary
Termination shall not waive any right of the Employee hereunder or
preclude the Employee from asserting such fact or circumstance in
enforcing his rights hereunder.
8. Arbitration.
(a) Any dispute or controversy arising out of, relating
to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination
thereof, shall be settled by binding arbitration to be held in
Santa Clara County, California, in accordance with the National
Rules for the Resolution of Employment Disputes then in effect of
the American Arbitration Association (the "Rules"). The arbitrator
may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court having
jurisdiction.
(b) The arbitrator(s) shall apply California law to the
merits of any dispute or claim, without reference to conflicts of
law rules. The arbitration proceedings shall be governed by
federal arbitration law and by the Rules, without reference to
state arbitration law. Employee hereby consents to the personal
jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are
participants.
(c) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION,
WHICH DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING
ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION,
CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED
TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF
THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND
IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
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(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY
FEDERAL, STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF
1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS
ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER
LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT
DISCRIMINATION.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be
required to mitigate the amount of any payment contemplated by this
Agreement, nor shall any such payment be reduced by any earnings
that the Employee may receive from any other source.
(b) Waiver. No provision of this Agreement may be
modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Employee and by
an authorized officer of the Company (other than the Employee). No
waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall
be considered a waiver of any other condition or provision or of
the same condition or provision at another time.
(c) Integration. This Agreement and any outstanding
stock option agreements referenced herein represent the entire
agreement and understanding between the parties as to the subject
matter herein and supersede all prior or contemporaneous
agreements, whether written or oral, with respect to this Agreement
and any stock option agreement.
(d) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by
the internal substantive laws, but not the conflicts of law rules,
of the State of California.
(e) Severability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision hereof, which
shall remain in full force and effect.
(f) Employment Taxes. All payments made pursuant to
this Agreement shall be subject to withholding of applicable income
and employment taxes.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.
-7-
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized
officer, as of the day and year first above written.
COMPANY: AEHR TEST SYSTEMS
By: /S/ GARY LARSON
---------------
Title: VP and CFO
EMPLOYEE: /S/RHEA J. POSEDEL
------------------
Signature
RHEA J. POSEDEL
---------------
Printed Name
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EX-99.1
7
ex99.txt
EXHIBIT 99.1
Exhibit 99.1
[LOGO]AEHR TEST SYSTEMS
FOR IMMEDIATE RELEASE
Contacts:
Aehr Test Systems Financial Relations Board
Carl Buck Marilynn Meek
V.P. of Sales and Marketing Analyst/Investor Contact
(510) 623-9400 x381 (212) 827-3773
AEHR TEST SYSTEMS APPOINTS
GAYN ERICKSON AS NEW CEO
Fremont, CA (January 3, 2012) - Aehr Test Systems (Nasdaq: AEHR), a
worldwide supplier of semiconductor test and burn-in equipment, today
announced that Gayn Erickson, a 23-year veteran of the semiconductor
test industry, has been appointed Chief Executive Officer (CEO) of
the company, effective January 3, 2012. Mr. Erickson is replacing Rhea
Posedel as CEO. He has also been appointed as a member of the board of
directors. Rhea Posedel, Aehr Test Systems' founder, chairman and
previous CEO, led the search for his replacement and has been appointed
Executive Chairman of Aehr Test, effective January 3, 2012.
"I have been with Aehr Test since its beginning, having founded the
company 34 years ago, and felt that now was the right time to turn the
company's leadership over to a new CEO. We have been fortunate in
attracting Gayn Erickson to assume this position. He brings excellent
qualifications and experience in the test industry to our company,"
said Rhea Posedel.
"Today we have the strongest product portfolio in our history with our
FOXTM full wafer test and burn-in systems and our ABTSTM family of
package test and burn-in systems. Additionally, we recently announced
an order for an ABTS system from one of the world's largest
semiconductor companies, which we believe gives us a stronger customer
base from which to grow our business over the long term. Most
importantly, we feel we have a leadership position in the emerging
market for wafer level test and burn-in, and I am very confident that
Gayn has the industry experience and management skills to take Aehr
Test to the next level. I look forward to my new role as Executive
Chairman and working with Gayn on strategic plans to further grow our
company," continued Mr. Posedel. "I would like to give a special
thanks to all my employees and friends who have supported me and Aehr
Test over the past 34 years."
Most recently, Mr. Erickson served as corporate officer and senior vice
president & general manager of Verigy's memory test business before it
was acquired by Advantest Japan last year. Prior to that, he was vice
president of marketing and sales for Agilent Technologies'
Semiconductor Memory Test products. He has over 23 years of executive
and general management, operations, marketing, sales, and R&D program
management
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experience dating back to the late 1980s, when he began his career in
semiconductor test with Hewlett-Packard's Automated Test Group.
"I am very pleased to be joining Aehr and excited by the many
opportunities we have to grow our company," commented Mr. Erickson. "I
have respected Aehr Test's leadership in the semiconductor test and
burn-in space for many years, and watched them win key accounts in our
industry with their FOX full wafer test systems and contactors.
Recently, Aehr Test secured significant evaluations/qualifications of
their new ABTS package test and burn-in system and I believe we are in
an excellent position to win additional customers with the FOX family
of products. This is both a great endorsement of the company's new
product and of their ability to emerge from the recent industry
downturn with new, highly competitive products that address both the
memory and logic test markets. I am confident that Aehr is in a great
position to capitalize on the opportunities in test that are developing
out of the shift in the semiconductor industry from IT/computing
dominated applications to consumer, mobile, and automotive
applications. I look forward to working with Rhea and the Aehr Test
team to profitably expand our company while continuing to satisfy
customers' needs with cost effective, highly reliable, and flexible
test solutions."
About Aehr Test Systems
Headquartered in Fremont, California, Aehr Test Systems is a worldwide
supplier of systems for burning-in and testing memory and logic
integrated circuits and has an installed base of more than 2,500
systems worldwide. Aehr Test has developed and introduced several
innovative products, including the ABTS, FOX and MAX systems and the
DiePak(R) carrier. The ABTS system is Aehr Test's newest system for
packaged part test during burn-in for both low-power and high-power
logic as well as all common types of memory devices. The FOX system is
a full wafer contact test and burn-in system. The MAX system can
effectively burn-in and functionally test complex devices, such as
digital signal processors, microprocessors, microcontrollers and
systems-on-a-chip. The DiePak carrier is a reusable, temporary package
that enables IC manufacturers to perform cost-effective final test and
burn-in of bare die. For more information, please visit the Company's
website at www.aehr.com.
Safe Harbor Statement
This release contains forward-looking statements that involve risks and
uncertainties relating to projections regarding customer demand and
acceptance of Aehr Test's products. Actual results may vary from
projected results. These risks and uncertainties include, without
limitation, acceptance by customers of the ABTS technology, acceptance
by customers of the ABTS systems shipped upon receipt of a purchase
order and the ability of new products to meet customer needs or perform
as described. See Aehr Test's recent 10-K, 10-Q and other reports from
time to time filed with the Securities and Exchange Commission (SEC)
for a more detailed description of the risks facing our business. The
Company disclaims any obligation to update information contained in any
forward-looking statement to reflect events or circumstances occurring
after the date of this press release.
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