-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PLrydM+I8wg1zVStONbUzShODATZ3nptBNbYXSf4VqQu6mAL1+vynk+PMHfGi8wW Pk/C2CFF1UEGVh3yjIExdA== 0001047469-97-005547.txt : 19971120 0001047469-97-005547.hdr.sgml : 19971120 ACCESSION NUMBER: 0001047469-97-005547 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971119 EFFECTIVENESS DATE: 19971119 SROS: NASD 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 FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-40577 FILM NUMBER: 97724627 BUSINESS ADDRESS: STREET 1: 1667 PLYMOUTH ST CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 4156919400 MAIL ADDRESS: STREET 1: 1667 PLYMOUTH ST CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1997 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AEHR TEST SYSTEMS (Exact name of Registrant as specified in its charter) California 94-2424084 - ------------------------ ---------------------------------------- (State of incorporation) (I.R.S. Employer Identification No.) 1667 Plymouth Street Mountain View, California 94043 (Address, including zip code, of Registrant's principal executive offices) 1986 INCENTIVE STOCK PLAN 1996 STOCK OPTION PLAN 1997 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) Aehr Test Systems 1667 Plymouth Street Mountain View, California 94043 (650) 691-9400 (Name, address, and telephone number, including area code, of agent for service) COPIES TO: Michael J. Danaher, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 (650) 493-9300 - --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------ Title of Proposed Proposed Securities Amount Maximum Maximum Amount of to be to be Offering Price Aggregate Registration Registered Registered Per Share Offering Price Fee - ------------------------------------------------------------------------------------------------------ 1986 Incentive Stock Plan Common Stock, $.01 par value 653,613 (1) $3.84 (2) $2,509,873.92 (3) $760.56 1996 Stock Option Plan Common Stock, $.01 par value 113,688 (4) $9.63 (5) $1,094,815.40 (6) $331.76 Common Stock, $.01 par value 536,000 (7) $11.34 (8) $6,078,240.00 (9) $1,841.89 1997 Employee Stock Purchase Plan Common Stock, $.01 par value 300,000 (10) $9.14 (11) $2,742,000.00 (12) $830.91
- -------------------- (1) For the sole purpose of calculating the registration fee, the number of shares to be registered under this Registration Statement has been broken down into four subtotals. This subtotal represents the number of shares issuable upon exercise of currently outstanding options (options that have been granted as of the date of this Registration Statement) issued under the 1986 Incentive Stock Plan. Options granted under this plan will remain outstanding in accordance with their terms, but the Board of Directors has determined that no further options will be granted under the 1986 Plan. (2) Calculated in accordance with Rule 457(h) under the Securities Act of 1933 (the "Act"), solely for the purpose of calculating the total registration fee. Calculation based on the weighted average exercise price (rounded to the nearest cent) at which the options outstanding whose exercise will result in the issuance of the shares being registered may be exercised. (3) Calculated in accordance with Rule 457(h) under the Act based on the aggregate exercise price of all currently outstanding options as described in note 1 above. (4) This subtotal represents the number of shares issuable upon exercise of currently outstanding options (options that have been granted as of the date of this Registration Statement) issued under the 1996 Stock Option Plan. (5) Calculated in accordance with Rule 457(h) under the Act solely for the purpose of calculating the total registration fee. Calculation based on the weighted average exercise price (rounded to the nearest cent) at which the options outstanding whose exercise will result in the issuance of the shares being registered may be exercised. (6) Calculated in accordance with Rule 457(h) under the Act based on the aggregate exercise price of all currently outstanding options as described in note 4 above. (7) This subtotal represents the number of shares issuable upon exercise of options that are available for grant, but have not yet been granted under the 1996 Stock Option Plan. (8) Calculated in accordance with Rule 457(h) under the Act solely for the purpose of calculating the total registration fee. Calculation based on the average bid and ask prices of the registrant's Common Stock as reported by the NASDAQ National Market System on November 18, 1997. 2 (9) Calculated in accordance with Rule 457(h) under the Act based on the aggregate exercise price for all options available for grant. (10) This subtotal represents the number of shares authorized to be issued under the 1997 Employee Stock Purchase Plan. There are currently no outstanding shares under this plan. (11) Estimated in accordance with Rule 457(h) under the Act solely for the purpose of calculating the total registration fee. Calculation based upon 85% (see explanation in following sentence) of the closing price of the Common Stock as reported on the Nasdaq National Market on November 18, 1997 because the price at which the options to be granted in the future may be exercised is not currently determinable. The purchase price of a share of Common Stock pursuant to the 1997 Employee Stock Purchase Plan, which plan is incorporated by reference herein, is equal to 85% of the Fair Market Value of a share of Common Stock on either the first day or the last day of the relevant offering period, whichever is lower. (12) Calculated in accordance with Rule 457(h) under the Act based on the aggregate exercise price for all options available as described in note 10 above. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INFORMATION INCORPORATED BY REFERENCE The following documents and information previously filed with the Securities and Exchange Commission are hereby incorporated by reference: (a) The Company's final prospectus filed pursuant to Rule 424(b)(4) under the Securities Act of 1933 on August 15, 1997 (File No. 333-28987). (b) The Registrant's Quarterly Report on Form 10-Q (as amended) for the quarter ended August 31, 1997, filed pursuant to Section 13 of the Exchange Act. (c) The description of the Common Stock of the Registrant that is contained in the Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act on July 29, 1997. (d) All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Counsel for the Company, Wilson Sonsini Goodrich & Rosati, Professional Corporation ("WSGR"), 650 Page Mill Road, Palo Alto, California 94304-1050, has rendered an opinion to the effect that the Common Stock offered hereby will, when issued in accordance with the Registrant's 1986 Incentive Stock Plan, 1996 Stock Option Plan and 1997 Employee Stock Purchase Plan (the "Plans"), be legally and validly issued, fully paid and non-assessable. Mario M. Rosati, a member of WSGR, is a director and Secretary of the Company. Mr. Rosati beneficially owns 198,516 shares of the Registrant's Common Stock and certain members of WSGR, or investment partnerships of which such persons are partners, beneficially owns 43,707 shares of the Registrant's Common Stock. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company's Restated Articles of Incorporation limit the liability of its directors for monetary damages arising from a breach of their fiduciary duty as directors, except to the extent otherwise required by the California Corporations Code. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. The Company's Bylaws provide that the Company shall indemnify its directors and officers to the fullest extent permitted by California law, including circumstances in which indemnification is otherwise discretionary under California law. The Company has also entered into indemnification agreements with its officers and directors containing provisions which are in some respects broader than the specific indemnification provisions II-1 contained in the California Corporations Code. The indemnification agreements may require the Company, among other things, to indemnify such officers and directors against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from willful misconduct of a culpable nature), to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to obtain directors= and officers= insurance if available on reasonable terms. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. Item 8. EXHIBITS Exhibit Number Document - ------ -------- 4.1* Form of Common Stock certificate 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered. 10.1* Amended 1986 Incentive Stock Plan and Form of Agreement thereunder. 10.2* 1996 Stock Option Plan (as amended and restated) and Forms of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement thereunder. 10.3* 1997 Employee Stock Purchase Plan and Form of Subscription Agreement thereunder. 23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney - -------------------- * Incorporated by reference to exhibits filed with the Company's Registration Statement on Form S-1 (file no. 333-28987), as amended, in the form declared effective on August 14, 1997. Item 9. UNDERTAKINGS II-2 (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be an initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mountain View, State of California, on November 19, 1997. AEHR TEST SYSTEMS By: /S/ RHEA J. POSEDEL ---------------------------------------- Rhea J. Posedel President, Chief Executive Officer and Chairman of the Board of Directors POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Rhea J. Posedel and Gary L. Larson, jointly and severally, as his or her attorney-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that the said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. SIGNATURE TITLE DATE - --------- ----- ---- /S/ RHEA J. POSEDEL President, Chief Executive November 19, 1997 - -------------------------- Officer and Chairman of Board Rhea J. Posedel of Directors /S/ GARY L. LARSON Vice President of Finance and November 19, 1997 - -------------------------- Chief Financial Officer Gary L. Larson (Principal Financial and Accounting Officer) /S/ WILLIAM W. R. ELDER Director November 19, 1997 - -------------------------- William W. R. Elder /S/ MARIO M. ROSATI Director November 19, 1997 - -------------------------- Mario M. Rosati /S/ DAVID TORRESDAL Director November 19, 1997 - -------------------------- David Torresdal /S/ KATSUJI TSUTSUMI Director November 19, 1997 - -------------------------- Katsuji Tsutsumi II-4 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- EXHIBITS ----------------- REGISTRATION STATEMENT ON FORM S-8 AEHR TEST SYSTEMS INDEX TO EXHIBITS Exhibit Number Document - ------ -------- 4.1* Form of Common Stock certificate 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered. 10.1* Amended 1986 Incentive Stock Plan and Form of Agreement thereunder. 10.2* 1996 Stock Option Plan (as amended and restated) and Forms of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement thereunder. 10.3* 1997 Employee Stock Purchase Plan and Form of Subscription Agreement thereunder. 23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (See Page II-4) - -------------------- * Incorporated by reference to exhibits filed with the Company's Registration Statement on Form S-1 (file no. 333-28987), as amended, in the form declared effective on August 14, 1997. EX-5.1 2 EXHIBIT 5.1 EXHIBIT 5.1 November 19, 1997 Aehr Test Systems 1667 Plymouth Street Mountain View, CA 94043 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about November 19, 1997 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of the 1986 Incentive Stock Option Plan (as to 653,613 shares), of the 1996 Stock Option Plan (as to 649,688 shares), and of the 1997 Employee Stock Purchase Plan (as to 300,000 shares) (collectively, the "Plans"). As legal counsel for Aehr Test Systems, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that the Shares, when issued and sold in the manner described in the Plans and pursuant to the agreement that accompanies each grant under the Plans, will be legally and validly issued, fully-paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /S/ WILSON SONSINI GOODRICH & ROSATI EX-23.1 3 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of Aehr Test Systems on Form S-8 of our reports dated June 30, 1997, on our audits of the consolidated financial statements and financial statement schedule of Aehr Test Systems as of May 31, 1997 and 1996, and for each of the three years in the period ended May 31, 1997, which reports are included in the registration statement on Form S-1. /S/ COOPERS & LYBRAND L.L.P. San Jose, California November 19, 1997 -----END PRIVACY-ENHANCED MESSAGE-----