AEHR TEST SYSTEMS
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as
of March 15, 2013, by and among Aehr Test Systems (the "Company"), a
California corporation, and each of the investors set forth on Exhibit
A attached hereto (the "Investors").
RECITALS
A. The Company has authorized the issuance and sale to certain
accredited investors of an aggregate of up to 1,872,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock").
B. The Investors desire to purchase and the Company desires to
issue and sell shares of Common Stock on the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants herein contained and other good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Purchase and Sale of Common Shares.
(a) Subject to the terms and conditions of this Agreement,
each Investor severally agrees to purchase at the Closing, and the
Company agrees to sell and issue to the such Investor at the Closing,
that number of shares of Common Stock set forth opposite such
Investor's name on Exhibit A attached hereto (the "Common Shares") at
a per share purchase price of $1.00.
2. The Closing.
(a) Closing Date. The closing of the purchase and sale of
the Common Shares (the "Closing") shall take place at the offices of
Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto,
California, at 3:00 p.m. local time on the date hereof, or at such
other location and on such other date as the Company and the Investors
acquiring a majority of the Common Shares purchased hereunder shall
mutually agree. The date of the Closing is referred to herein as the
"Closing Date."
(b) Payment. At the Closing, each Investor shall deliver
to the Company (i) the purchase price for the Common Shares being
purchased by the Investor by check or by wire transfer of immediately
available funds to an account designated by the Company at the
Closing, and (ii) the documents set forth in Section 6(b) of this
Agreement.
(c) Certificate. The Company shall deliver or cause to be
delivered to each Investor (i) a certificate representing the Common
Shares purchased by the Investor, in definitive
form and registered in the Investor's name within a reasonable time
after the Closing and (ii) the documents set forth in Section 6(a) of
this Agreement at the Closing.
3. Representations and Warranties of the Company. Except as
set forth on the Schedule of Exceptions attached hereto as Exhibit B,
the Company hereby represents and warrants to the Investors on the
date hereof as follows:
(a) Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of California. The Company has the power
and authority, corporate or otherwise, as appropriate, to own, lease
and operate its properties and to conduct its business as now
conducted and to enter into and perform its obligations under this
Agreement. The Company is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which such qualification
is required, except where the failure to so qualify would not
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, properties, business, or
results of operations of the Company (a "Material Adverse Effect").
(b) Authorized Capital Stock. As of the date hereof, the
authorized capital stock of the Company consists of 75,000,000 shares
of Common Stock, $0.01 par value, and 10,000,000 shares of Preferred
Stock, $0.01 par value. As of the date hereof, approximately
9,362,987 shares of Common Stock and no shares of Preferred Stock are
validly issued and outstanding, and each outstanding share of Common
Stock is fully paid and nonassessable. The Company has reserved (i)
4,762,624 shares of Common Stock for issuance pursuant to the
Company's 2006 Equity Incentive Plan and (ii) 1,550,000 shares of
Common Stock for issuance pursuant to the Company's 2006 Employee
Stock Purchase Plan and 1997 Employee Stock Purchase Plan (together,
the "Purchase Plans"), and has outstanding options to purchase
2,973,964 shares of Common Stock under the 2006 Equity Incentive Plan
as of the date hereof. The designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of each class
and series of authorized capital stock of the Company are as set forth
in the Company's articles of incorporation. The issued and
outstanding shares of Common Stock conform to the description thereof
contained in the reports (the "Exchange Act Reports") filed by the
Company with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Except for options issued under the Company's 2006
Equity Incentive Plan and the obligations under the Purchase Plans,
the Company does not have outstanding any options or warrants to
purchase, or any preemptive rights or other rights to subscribe for or
to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital
stock, and there is no commitment, plan or arrangement to issue, any
securities or obligations convertible into any shares of capital stock
of the Company or any such options, rights convertible securities or
obligations.
(c) Issuance, Sale and Delivery of the Common Shares. The
Common Shares have been duly authorized and, when issued, delivered
and paid for in the manner set forth in this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable. No
preemptive rights or other rights (which have not been waived) to
subscribe for or purchase exist with respect to the issuance and sale
of the Common Shares by the Company pursuant to this Agreement. No
shareholder of the Company has any right to request or require the
Company to register the sale of
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any shares owned by such shareholder under the Securities Act of 1933,
as amended (the "Securities Act"). Subject to the satisfaction of the
conditions set forth in Section 6(b), no further approval or authority
of the shareholders or the Board of Directors of the Company will be
required for the issuance and sale of the Common Shares as
contemplated herein.
(d) Due Execution, Delivery and Performance of this
Agreement. The Company has full legal right, corporate power and
authority to enter into this Agreement and to perform the transactions
contemplated hereby. This Agreement has been duly authorized by the
Company. The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby will not violate any provision of the organizational documents
of the Company and will not result in the creation of any lien,
charge, security interest or encumbrance upon any assets or property
of the Company pursuant to the terms or provisions of, or will not
conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the
Company is a party or by which the Company or any of its assets or
properties may be bound or affected or, to the Company's knowledge,
and subject to satisfaction of the conditions set forth in
Section 6(b), any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the
Company or any of its properties. No consent, approval, authorization
or other order of any court, regulatory body, administrative agency or
other governmental body is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except for compliance with Blue Sky laws and
federal securities laws applicable to the offering and registration
for resale of the Common Shares and compliance with the rules and
regulations of the securities exchange or trading market on which the
Common Stock is listed. Upon the execution and delivery, and assuming
the valid execution of this Agreement by the Investor, this Agreement
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and except as enforceability may
be subject to general principles of equity.
(e) Financials. The Company's financial statements
(including all notes and schedules thereto) included in the Exchange
Act Reports present fairly the financial position, the results of
operations, the statements of cash flows and the statements of
shareholders' equity and the other information purported to be shown
therein of the Company at the respective dates and for the respective
periods to which they apply (subject, in the case of unaudited
statements, to normal year end audit adjustments and the absence of
footnotes) and such financial statements have been prepared in
conformity with generally accepted accounting principles, consistently
applied throughout the periods involved (except as may be indicated in
the notes thereto). Since the date of the most recent financial
statements included in the Exchange Act Reports, there has not been:
(i) any event or condition of any character that, either individually
or cumulatively, has or would have a Material Adverse Effect or (ii)
any sale, assignment or transfer of any patents, trademarks, trade
secrets or other intangible assets of the Company.
(f) Contracts. The contracts described in the Exchange Act
Reports as being in effect on the date hereof, are in full force and
effect on the date hereof, and the Company is not, nor
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to the Company's knowledge, is any other party in breach of or default
under any written agreement which would have a Material Adverse
Effect.
(g) No Actions. There are no legal or governmental
actions, suits or proceedings pending or, to the Company's knowledge,
threatened to which the Company is or may be a party or of which
property owned or leased by the Company is or may be the subject. The
Company is not a party to or subject to the provisions of any material
injunction, judgment, decree or order of any court, regulatory body
administrative agency or other governmental body.
(h) Finders' Fees. Other than as set forth in the Schedule
of Exceptions, no investment banker, broker, finder or other
intermediary has been retained by or is authorized to act on behalf of
the Company who is or might be entitled to any fee or commission from
the Company or any of its affiliates upon consummation of the
transactions contemplated by this Agreement.
(i) Commission Reports. The Company has complied in all
material respects with the filing requirements of the Commission under
the Exchange Act and all rules and regulations thereunder for the two
years preceding the date hereof. As of their respective filing dates,
all documents filed by the Company with the Commission complied in all
material respects with the requirements of the Exchange Act or the
Securities Act, as applicable and all rules and regulations
thereunder, and none of the Exchange Act Reports, when filed,
contained any untrue statement of a material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(j) Intellectual Property. There are no claims pending or,
to the Company's knowledge, threatened that the Company or any of its
subsidiaries is infringing (including with respect to the manufacture,
use or sale by the Company or any of its subsidiaries of their
respective products) upon any patent, patent application, trademark,
trademark rights, trade names, trade name rights, copyrights,
technical know-how and other proprietary intellectual property rights
(the "Intellectual Property Rights") of a third party, and the Company
has no reason to believe that the current business activities of the
Company or its subsidiaries are reasonably likely to give rise to any
such claim(s). To the Company's knowledge, no third party is
infringing upon any material Intellectual Property Right of the
Company.
(k) Offering Valid. Assuming the accuracy of the
representations and warranties of the Investors contained in Section 4
hereof, the offer, sale and issuance of the Common Shares will be
exempt from the registration requirements of the Securities Act, and
will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws.
(l) Disclosure. Neither this Agreement nor any exhibit or
other document delivered in connection herewith contains an untrue
statement of a material fact or omits a material fact necessary to
make the statements contained herein or therein, in the light of the
circumstances under which they were made, not misleading. None of the
statements, documents, certificates or other items supplied by the
Company at the Closing shall contain an untrue statement of a material
fact or omit a material fact necessary to make the statements
contained therein, in light of the circumstances under which they are
made, not misleading. There is no fact which the Company has
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not disclosed to the Investors and which is known to the Company
(other than facts known to the general public or generally known in
the Company's industry) which would cause a Material Adverse Effect.
The Company has supplied each Investor with all written information
previously requested by such Investor in writing to the Company.
4. Representations and Warranties of the Investors. Each
Investor hereby represents and warrants to the Company on the date
hereof as follows:
(a) Private Placement.
(i) Investor understands that the offering and sale
of the Common Shares is intended to be exempt from registration under
the Securities Act.
(ii) Investor represents and warrants that it is
acquiring the Common Shares acquired by such Investor pursuant to this
Agreement for investment for Investor's own account and not with a
view to the resale or distribution of such Common Shares or any
interest therein other than in a transaction that is registered or
exempt from registration under the Securities Act.
(iii) Investor represents and warrants that it is an
"accredited investor" as such term is defined in Regulation D under
the Securities Act.
(iv) Investor represents and warrants that it
(either alone or together with its advisors) has sufficient knowledge
and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Common
Shares, and is capable of bearing the economic risks of such
investment, including a complete loss of its investment in the Common
Shares acquired by it hereunder.
(v) Investor has been given the opportunity to ask
questions of, and receive answers from, the Company regarding the
Company, the terms and conditions of the Common Shares and related
matters, and has been furnished with the information it deems
necessary or desirable to evaluate the merits and risks of its
acquisition of the Common Shares.
(vi) Investor understands that the Common Shares
that it is acquiring are characterized as "restricted securities"
under the Securities Act in as much as they are being acquired from
the Company in a transaction not involving a public offering and that
under the Securities Act and applicable regulations, such Common
Shares may be resold without registration under the Securities Act
only in certain limited circumstances. Investor understands that the
certificates evidencing the Common Shares will bear a restrictive
legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
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COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES
AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE COMPANY.
(vii) Investor has, in connection with its decision
to acquire the Common Shares, relied solely upon the Exchange Act
Reports and the representations and warranties of the Company
contained in this Agreement.
(b) Additional Representations of Foreign Investor. If the
Investor does not reside in and is not a citizen of the United States,
for the purpose of this Section 4, the Investor shall be deemed a
"Foreign Purchaser" and the Investor represents, warrants and
covenants to the Company, in addition to the other representations,
warranties and covenants set forth in this Section 4, the following,
but only in the event, and to the extent, that the Investor seeks to
rely upon the provisions of Regulation S for the resale of the Common
Shares:
(i) Neither the Foreign Purchaser nor any person for
the account of whom such Foreign Purchaser is acting, including the
estate of any such person, a trust of which any such person is a
beneficiary, or a corporation, partnership, trust or other entity
organized under the laws of the United States of America, is a citizen
or resident of the United States of America (a "U.S. Person").
(ii) Such Foreign Purchaser will not sell, transfer
or otherwise dispose of the Common Shares for the applicable
restricted period as set forth in Regulation S, and such Foreign
Purchaser will not thereafter sell or otherwise transfer the Common
Shares and any securities issued upon exercise thereof to a U.S.
Person unless the Company has received an opinion of counsel,
satisfactory to the Company, that such transfer will not be in
violation of the Securities Act or any applicable state securities
laws.
(iii) The Foreign Purchaser understands that the
Company will not allow any transfer or other disposition of the Common
Shares unless the proposed transferee shall have executed an
instrument containing the representations set forth in the foregoing
paragraphs (i) and (ii) of this section or the Company shall have
received an opinion of counsel satisfactory to the Company to the
effect that such proposed transfer would not be in violation of the
Securities Act or any applicable state securities law.
(c) Finders' Fees. Other than as set forth in the Schedule
of Exceptions, no investment banker, broker, finder or other
intermediary has been retained by or is authorized to act on behalf of
the Company or the Investors who is or might be entitled to any fee or
commission from the Company or any of its affiliates upon consummation
of the transactions contemplated by this Agreement.
5. Additional Agreements and Covenants of the Company and the
Investors.
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(a) Further Assurances. The Company and the Investors
agree to execute and deliver such documents, certificates, agreements
and other writings and to take such other actions as may be reasonably
necessary or desirable in order to consummate the transactions
contemplated by this Agreement.
(b) Securities Law Transfer Restrictions. No Investor
shall sell, assign, pledge, transfer or otherwise dispose of or
encumber any of the Common Shares being purchased by it hereunder,
except (i) pursuant to an effective registration statement under the
Securities Act or (ii) pursuant to an available exemption from
registration under the Securities Act and applicable state securities
laws and, if requested by the Company, upon delivery by such Investor
of an opinion of counsel reasonably satisfactory to the Company to the
effect that the proposed transfer is exempt from registration under
the Securities Act and applicable state securities laws; provided that
no such opinion shall be requested for any transfer of Shares that is
exempt from such registration under Rule 144 under the Securities Act.
Any transfer or purported transfer of the Shares in violation of this
Section 5(b) shall be voidable by the Company. The Company shall not
register any transfer of the Shares in violation of this Section 5(b).
The Company may, and may instruct any transfer agent for the Company,
to place such stop transfer orders as may be required on the transfer
books of the Company in order to ensure compliance with the provisions
of this Section 5(b).
(c) Furnishing of Information. As long as any Investor
owns Common Shares, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act. As long as any Investor owns
Common Shares, if the Company is not required to file reports pursuant
to the Exchange Act, it will prepare and furnish to the Investors and
make publicly available in accordance with Rule 144(c) such
information as is required for the Investors to sell the Securities
under Rule 144. The Company further covenants that it will take such
further action as any Investor may reasonably request to the extent
required from time to time to enable such Investor to sell Common
Shares without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144.
(d) Piggy-Back Registrations. If at any time after the
Closing the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its
own account or the account of others under the Securities Act of any
of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities
issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Investor written notice of
such determination and if, within ten days after receipt of such
notice, any such Investor shall so request in writing, the Company
shall include in such registration statement all or any part of the
Common Shares held by such Investor that such Investor requests to be
registered. If an offering in connection with which an Investor is
entitled to registration under this Section 5(d) is an underwritten
offering, then each Investor whose Common Shares are included in such
registration statement shall, unless otherwise agreed by the Company,
offer and sell his, her or its Common Shares in an underwritten
offering using the same underwriter(s) and, subject to the provisions
of this Agreement, on the same terms and conditions as other shares of
the Common Stock included in such underwritten offering and
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shall enter into an underwriting agreement in form and substance
reasonably satisfactory to the Company and the underwriter(s).
6. Closing Deliveries.
(a) Conditions to the Investor's Obligations. The
obligation of each Investor to consummate the transactions
contemplated by this Agreement shall be subject to the delivery of the
fulfillment prior to or at the Closing of the following conditions,
any of which may be waived in whole or in part by such Investor:
(i) The representations and warranties of the
Company contained in Section 3 shall be true on and as of the Closing
in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of
such Closing, except for those representations and warranties which
address matters only as of a particular date, which shall remain true
and correct as of such particular date and except where the failure to
be true and correct will not have a Material Adverse Effect on the
Company.
(ii) The Company shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on
or before the Closing.
(iii) The Company shall have obtained any and all
consents, permits and waivers necessary for the consummation of the
transactions contemplated by this Agreement (except for such as may be
properly obtained subsequent to the Closing).
(iv) The Company shall have delivered the following:
(1) a copy of the resolutions of the Company's
Board of Directors authorizing (A) the execution, delivery and
consummation of this Agreement and (B) transactions contemplated
hereby and thereby; and
(2) a certificate of the President of the
Company, dated the Closing Date, certifying that the conditions
specified in Sections 6(a)(i) and 6(a)(ii) have been fulfilled.
(b) Conditions to the Obligations of the Company. The
obligation of the Company to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment at or prior to
the Closing of the following conditions:
(i) The representations and warranties of the
Investors contained in Section 4 shall be true on and as of the
Closing in all material respects with the same effect as though such
representations and warranties had been made on and as of the Closing.
(ii) All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United
States or of any state or of any securities exchange or trading market
on which the Common Stock is listed that are required in connection
with the lawful issuance and sale of Common Shares pursuant to this
Agreement shall have been duly obtained and
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effective as of the Closing and all filings with such authorities or
regulatory bodies shall have been made and accepted.
(iii) Each Investor shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on
or before the Closing.
(iv) Each Investor shall have paid the purchase price
as set forth in Section 1 above.
7. Miscellaneous.
(a) Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or
similar writing) and shall be given to such party at its address or
facsimile number as set forth below, or such other address or
facsimile number as such party may hereinafter specify for the purpose
of giving notice hereunder to the party giving such notice. Each such
notice, request or other communication shall be effective: (i) if
given by facsimile, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 7(a) and the
appropriate confirmation is received; (ii) if given by mail, 72 hours
after such communication is deposited in the mails, certified mail,
return receipt requested, postage prepaid, addressed as aforesaid or;
(iii) if given by any other means, when delivered at the address as
follows:
If to the Company, to:
Aehr Test Systems
400 Kato Terrace
Fremont, CA 94539
Attn: Chief Financial Officer
Phone: (510) 623-9400 x321
Fax: (510) 623-9686
With a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94307
Attn: Mario Rosati
Phone: (650) 493-9300
Fax: (650) 493-6811
If to an Investor, to the address set forth next to such
Investor's name on Exhibit A hereto.
(b) Amendments and Waivers.
(i) Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either
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retroactively or prospectively), only with the written consent of the
Company and the Investors holding a majority of the Common Shares
issued by the Company pursuant to this Agreement. Any amendment or
waiver effected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities
are exercisable), each future holder of all such securities, and the
Company.
(ii) No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
(c) Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided,
however, that no party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent
of the other party.
(d) Governing Law. This Agreement and all matters arising
directly or indirectly herefrom shall be governed by, and construed in
accordance with, the laws of the State of California without regard to
the conflicts of laws principles thereof.
(e) Consent to Jurisdiction. The parties hereto agree that
any suit, action or proceeding relating to or arising out of this
Agreement or the transactions contemplated hereby, shall be brought in
the federal and state courts located in Santa Clara County,
California, so long as one of such courts shall have subject matter
jurisdiction over such suit, action or proceeding, and that any cause
of action arising out of this Agreement directly or indirectly shall
be deemed to have arisen from a transaction of business in the State
of California, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world,
whether within or outside the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on
such party as provided in Section 7(a) shall be deemed effective
service of process on such party.
(f) WAIVER OF JURY TRIAL. THE COMPANY AND EACH INVESTOR
EACH HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Facsimile Signatures. This Agreement may
be executed in counterparts, each of which shall be deemed an original
agreement, but all of which together shall constitute one and the same
instrument. Execution and delivery of this Agreement by facsimile
transmission shall constitute execution and delivery of this Agreement
for all purposes, with the same force and effect as execution and
delivery of an original manually signed copy hereof.
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(h) Entire Agreement. This Agreement constitutes the
entire agreement and understanding between the parties hereto and
supersedes any and all prior agreements and understandings, written or
oral, relating to the subject matter of this Agreement.
(i) Headings. The headings in this Agreement are included
for convenience of reference only and shall be ignored in the
construction or interpretation hereof.
(j) Attorneys Fees. In the event any suit or action is
instituted to enforce any provision in this Agreement, the
substantially prevailing party in such dispute shall be entitled to
recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to
this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeal.
(k) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
but shall be interpreted as if it were written so as to be enforceable
to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provision of law which renders any provisions hereof
prohibited or unenforceable in any respect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day
and year first above written.
AEHR TEST SYSTEMS
By: /s/ Gayn Erickson
-----------------------
Name: Gayn Erickson
Title: President and Chief
Executive Officer
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day
and year first above written.
Gaylord L. Erickson
By: /s/ Gaylord L. Erickson
------------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day
and year first above written.
Gary Larson
By: /s/ Gary Larson
---------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Carl N. Buck
By: /s/ Carl N. Buck
---------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
David Hendrickson
By: /s/ David Hendrickson
-----------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Larry Anderson
By: /s/ Larry Anderson
-------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Howard Slayen
By: /s/ Howard Slayen
-------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Posedel Family Trust
By: /s/ Rhea Posedel
-------------------
Name: Rhea Posedel
Title: Trustee
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Robert Anderson 2000
Revocable Trust
By: /s/ Robert Anderson
----------------------
Name: Robert Anderson
Title: Trustee
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Blinn Family Trust
By: /s/ Adriana E. Blinn
-----------------------
Name: Adriana E. Blinn
Title: Trustee
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
The Patel Family Partners,LP
By: /s/ Mukesh Patel
-----------------------
Name: Mukesh Patel
Title: General Partner
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Westerly Partners, LP
By: /s/ Chris Galvin
-----------------------
Name: Chris Galvin
Title: Managing Member
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Cardinal Value, L.P.
By: Smart Cardinal Management LLC., General
Partner
By: /s/ William Smart
------------------------
Name: William Smart
Title: Managing Member
By: /s/ James Smart
------------------------
Name: James Smart
Title: Managing Member
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
FBO Mel S. Lavitt
By: /s/ Mel S. Lavitt
---------------------
Name: Mel S. Lavitt
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Wendy Lavitt
By: /s/ Wendy Lavitt
------------------
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as
of the day and year first above written.
Jenny June Scott Trust
By: /s/ Geoffrey G. Scott
----------------------
Name: Geoffrey G. Scott
Title: Trustee
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
Exhibit A
Investors
------------------------------ ------------------ ------------------
Investment Common Shares
Name and Address Amount ($) Purchased
------------------------------ ------------------ ------------------
Gaylord L. Erickson
5321 Apennines Circle
San Jose, CA 95138 $50,000.00 50,000
Gary Larson
3677 El Grande Drive
San Jose, CA 95132 $10,000.00 10,000
Carl N. Buck
10320 S. Tantau Ave.
Cupertino, CA 95014 $10,000.00 10,000
David Hendrickson
1824 Glen Una Ave
San Jose, CA 95125 $20,000.00 20,000
Larry Anderson
388 Sea Wolf Way
Livermore, CA 94550 $10,000.00 10,000
Howard Slayen
400 Kato Terrace
Fremont, CA 94539 $25,000.00 25,000
Rhea Posedel, Trustee of the
Posedel Family Trust
1736 Terrace Dr.
Belmont, CA 94002 $25,000.00 25,000
Robert Anderson, Trustee of the
Robert Anderson 2000
Revocable Trust
398 Questa Ct.
Reno, NV 89511 $200,000.00 200,000
Adriana E. Blinn, Trustee of the
Blinn Family Trust
398 Questa Ct.
Reno, NV 89511 $50,000.00 50,000
Mukesh Patel, General Partner,
The Patel Family Partners, LP
8624 White Oak Ct.
Pleasanton, CA 94588 $250,000.00 250,000
Westerly Partners, LP
201 Mission St
San Francisco, CA 94105 $116,000.00 116,000
Smart Cardinal Management,
LLC. General Partner of
Cardinal Value, L.P.
PO Box 742
Palo Alto, CA 94302 $50,000.00 50,000
National Financial FBO Mel
Lavitt
Fidelity Investments
Attn: Banking Services
Mail Zone: KCIN
100 Crosby Parkway
Covington, KY 41015 $100,000.00 100,000
Wendy Lavitt
PO Box 70
Park City, UT 84060 $100,000.00 100,000
Jenny June Scott Trust
Geoffrey G. Scott Trustee
12930 Morehead
Chapel Hill, NC 27517 $142,000.00 142,000
Totals $1,158,000.00 1,158,000
AEHR TEST SYSTEMS
SIGNATURE PAGE TO COMMON STOCK PURCHAS AGREEMENT
Exhibit B
Schedule of Exceptions