0001040470-13-000010.txt : 20130308
0001040470-13-000010.hdr.sgml : 20130308
20130308160624
ACCESSION NUMBER: 0001040470-13-000010
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 3
CONFORMED PERIOD OF REPORT: 20130305
ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
FILED AS OF DATE: 20130308
DATE AS OF CHANGE: 20130308
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: 13677518
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
e8k3813.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): March 5, 2013
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.
Resignation of Executive Chairman; Appointment of Chairman of the Board
On March 5, 2013, the Board of Directors (the "Board") of Aehr Test
Systems (the "Company") appointed Rhea J. Posedel as the Chairman of the Board,
effective upon his resignation as the Company's Executive Chairman, which was
tendered and accepted by the Board in connection with such appointment.
Compensatory Arrangements of Chairman of the Board
In connection with the appointment of Mr. Posedel to his position as
Chairman of the Board, the Board also approved an offer letter with Mr. Posedel
(the "Posedel Offer Letter"), providing for a minimum of three (3) years of
employment, which supersedes and replaces the offer letter dated January 3,
2012 between Mr. Posedel and the Company. Pursuant to the terms of the Posedel
Offer Letter, Mr. Posedel's new annual base salary is $100,000, beginning
effective as of February 1, 2013. In addition, Mr. Posedel is eligible for
stock option grants pursuant to the Company's 2006 Equity Incentive Plan and
participation in the Company's Employee Stock Ownership Plan and Employee Stock
Purchase Plan, as determined from time to time by the Compensation Committee
of the Board.
The full text of the Posedel Offer Letter is attached to this Form 8-K
as Exhibit 10.1. This description is qualified by reference to the actual text
of such agreement.
Amended and Restated Change of Control Severance Agreement
Additionally, in connection with Mr. Posedel's continuing service as
Chairman of the Board in a non-executive capacity, the Board approved an
Amended and Restated Change of Control Severance Agreement with Mr. Posedel
(the "Posedel Severance Agreement"), which Posedel Severance Agreement
supersedes and replaces the Amended and Restated Change of Control Severance
Agreement dated January 3, 2012 previously entered into between Mr. Posedel
and the Company. Pursuant to the Posedel Severance Agreement, if Mr. Posedel
is terminated as a result of an Involuntary Termination (as defined in the
Posedel Severance Agreement) prior to the expiration of his three (3) 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 three (3) year employment term. Further, if Mr.
Posedel is terminated as a result of an Involuntary Termination within twelve
(12) months following a Change of Control (as 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 three (3) year employment term or (b)
eighteen (18) months of his base salary.
The full text of the Posedel Severance Agreement is attached to this Form
8-K as Exhibit 10.2. This description is qualified by reference to the actual
text of such agreement.
Change in Annual Base Salaries for Certain Officers
On March 5, 2013, the Board approved reductions to the annual base
salaries of the Company's Chief Executive Officer and other named executive
officers of the Company (the "Named Executive Officers"), which are in addition
to the salary reductions instituted by the Board on January 31, 2012. The Board
approved an aggregate reduction to the annual base salary of the Chief
Executive Officer of twenty percent (20%) and an aggregate reduction to the
annual base salaries of the other Named Executive Officers by fifteen percent
(15%), such changes to be effective March 4, 2013. All other forms of
compensation paid to the Chief Executive Officer and other Named Executive
Officers are unchanged from the rates disclosed in the Company's definitive
proxy statement filed September 26, 2012.
ITEM 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
----------- -----------
10.1 Offer Letter dated March 5, 2013, between the
Company and Rhea Posedel.
10.2 Amended and Restated Change of Control Severance
Agreement dated March 5, 2013, between the
Company and Rhea J. Posedel.
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: March 8, 2013
By: /S/ GARY L. LARSON
-------------------------
Gary L. Larson
Vice President of Finance and
Chief Financial Officer
EX-10.1
2
ex101.txt
EXHIBIT 10.1
[LOGO]AEHR TEST SYSTEMS
March 5, 2013
Rhea J. Posedel
Dear Mr. Posedel:
On behalf of the Board of Directors of Aehr Test Systems (the
"Company"), I am pleased to offer you continuing employment as the
Company's Chairman of the Board (the "Chairman") in a non-executive
capacity, on the terms set forth herein. This offer is contingent upon
your resignation from your current position as the Company's Executive
Chairman, and by signing this letter you hereby resign as the Company's
Executive Chairman. As the Chairman, you will receive a yearly salary
of $100,000 beginning effective as of February 1, 2013, which will be
paid bi-weekly 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 and
long term disability coverage. Your accrued vacation balance as of
January 31, 2013 will be paid out to you at your then current pay rate,
and no additional vacation time will be accrued thereafter on your
behalf. In addition you will also be eligible for stock option grants
pursuant to the Company's 2006 Equity Incentive Plan and participation
in the Employee Stock Ownership Plan and the Employee Stock Purchase
Plan (as permitted), 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 Chairman shall be
for a minimum term of three (3) 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 Amended and Restated Change of Control Severance Agreement
dated January 3, 2012 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 three (3) 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 three (3) 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. 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, the Offer Letter dated
January 3, 2012 between you and the Company, and 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/ GAYN ERICKSON
-----------------------
Gayn Erickson,
President and Chief Executive Officer
Agreed to and accepted:
Signature: /S/ RHEA J. POSEDEL
-----------------------
Printed Name: RHEA J. POSEDEL
-----------------------
Date: March 5, 2013
Enclosures
Duplicate Original Letter
-3-
EX-10.2
3
ex102.txt
EXHIBIT 10.2
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 March 5, 2013 (the "Effective Date"). The
Agreement replaces in its entirety the Amended and Restated Change of
Control Severance Agreement previously entered into between Employee and
the Company, which was dated January 3, 2012.
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
-2-
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 three (3) 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 three (3) 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 three (3) 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
-3-
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
-4-
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
-5-
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.
-6-
(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/ GAYN ERICKSON
-------------------------------------
Name: Gayn Erickson
-------------------------------------
Title:President and Chief Executive Officer
-------------------------------------
EMPLOYEE: /S/ RHEA J. POSEDEL
-------------------------------------------
Signature
RHEA J. POSEDEL
-------------------------------------------
Printed Name
-8-