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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1997
REGISTRATION NO. 333-
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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
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(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
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<TABLE>
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CALCULATION OF REGISTRATION FEE
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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
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<S> <C> <C> <C> <C>
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
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(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.
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(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.
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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
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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
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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
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* 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
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(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.
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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
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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
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/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
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William W. R. Elder
/S/ MARIO M. ROSATI Director November 19, 1997
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Mario M. Rosati
/S/ DAVID TORRESDAL Director November 19, 1997
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David Torresdal
/S/ KATSUJI TSUTSUMI Director November 19, 1997
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Katsuji Tsutsumi
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
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REGISTRATION STATEMENT ON FORM S-8
AEHR TEST SYSTEMS
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INDEX TO EXHIBITS
Exhibit
Number Document
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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)
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* 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.
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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
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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
