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
Xxxx X. Xxxxxxx ("Employee") and Aehr Test Systems, a California
corporation (the "Company"), effective as of January 3, 2012 (the
"Effective Date"). The Agreement replaces in its entirety the
Change of Control Severance Agreement previously entered into
between Employee and the Company, which was dated January 24, 2001.
R E C I T A L S
A. It is expected that the Company from time to time will
consider the possibility of a Change of Control. The Board of
Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to the Employee and can cause
the Employee to consider alternative employment opportunities.
B. The Board believes that it is in the best interests of
the Company and its shareholders to provide the Employee with an
incentive to continue his employment and to maximize the value of
the Company upon a Change of Control for the benefit of its
shareholders.
C. In order to provide the Employee with enhanced
financial security and sufficient encouragement to remain with the
Company notwithstanding the possibility of a Change of Control, the
Board believes that it is imperative to provide the Employee with
certain severance benefits upon the Employee's termination of
employment following a Change of Control.
AGREEMENT
In consideration of the mutual covenants herein contained and
the continued employment of Employee by the Company, the parties
agree as follows:
1. Definition of Terms. The following terms referred to in
this Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal
dishonesty taken by the Employee in connection with his
responsibilities as an employee which is intended to result in
substantial personal enrichment of the Employee, (ii) Employee's
conviction of a felony which the Board reasonably believes has had
or will have a material detrimental effect on the Company's
reputation or business, (iii) a willful act by the Employee which
constitutes misconduct and is injurious to the Company, and/or (iv)
continued willful violations by the Employee of the Employee's
obligations to the Company after there has been delivered to the
Employee a written demand for performance from the Company which
describes the basis for the Company's belief that the Employee has
not substantially performed his duties.
(b) Change of Control. "Change of Control" shall mean
the occurrence of any of the following events:
(i) the approval by shareholders of the Company of
a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation;
(ii) the approval by the shareholders of the
Company of a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets;
(iii) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becoming the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total
voting power represented by the Company's then outstanding voting
securities; or
(iv) a change in the composition of the Board, as a
result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date hereof,
or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of those directors
whose election or nomination was not in connection with any
transactions described in subsections (i), (ii), or (iii) or in
connection with an actual or threatened proxy contest relating to
the election of directors of the Company.
(c) Involuntary Termination. "Involuntary Termination"
shall mean (i) without the Employee's express written consent, a
significant reduction of the Employee's duties, position or
responsibilities relative to the Employee's duties, position or
responsibilities in effect immediately prior to such reduction, or
the removal of the Employee from such position, duties and
responsibilities, unless the Employee is provided with comparable
duties, position and responsibilities; provided, however, that a
reduction in duties, position or responsibilities solely by virtue
of the Company being acquired and made part of a larger entity (as,
for example, when the Chief Financial Officer of the Company
remains as such following a Change of Control but is not made the
Chief Financial Officer of the acquiring corporation) shall not
constitute an "Involuntary Termination;" (ii) without the
Employee's express written consent, a substantial reduction,
without good business reasons, of the facilities and perquisites
(including office space and location) available to the Employee
immediately prior to such reduction; (iii) a reduction by the
Company of the Employee's base salary as in effect immediately
prior to such reduction; (iv) a material reduction by the Company
in the kind or level of employee benefits to which the Employee is
entitled immediately prior to such reduction with the result that
the Employee's overall benefits package is significantly reduced;
(v) without the Employee's express written consent, the relocation
of the
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Employee to a facility or a location more than fifty (50) miles
from his current location; (vi) any purported termination of the
Employee by the Company which is not effected for Cause or for
which the grounds relied upon are not valid; or (vii) the failure
of the Company to obtain the assumption of this Agreement by any
successors contemplated in Section 6 below.
(d) Termination Date. "Termination Date" shall mean the
effective date of any notice of termination delivered by one party
to the other hereunder.
2. Term of Agreement. This Agreement shall terminate upon
the date that all obligations of the parties hereto under this
Agreement have been satisfied or, if earlier, on the date, prior to
a Change of Control, Employee is no longer employed by the Company.
3. Term Employment. The Company and the Employee
acknowledge that the Employee's employment is for a minimum term of
two (2) years, with Employee's employment continuing on an at-will
basis thereafter. If the Employee's employment terminates for any
reason, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided by
this Agreement, or as may otherwise be established under the
Company's then existing employee benefit plans or policies at the
time of termination.
4. Severance Benefits.
(a) Involuntary Termination Apart from a Change of
Control. If the Employee's employment with the Company terminates
as a result of an Involuntary Termination during Employee's two (2)
year term of employment, other than as a result of an Involuntary
Termination within twelve (12) months following a Change of
Control, then Employee shall be entitled to the following severance
benefits:
(i) the balance of Employee's base salary for
Employee's two (2) year term of employment, payable in a lump sum
within thirty (30) days of Employee's Involuntary Termination; and
(ii) any stock options granted by the Company to
Employee prior to Employee's Involuntary Termination shall become
fully vested and exercisable as of the date of termination to the
extent such stock options are outstanding and unexercisable at the
time of Employee's termination and all stock subject to a right of
repurchase by the Company (or its successor) that was purchased
prior to the termination shall have such right of repurchase lapse
with respect to all of the shares.
(iii) Employee may elect to forgoe the severance
benefits set forth in Section 4(a)(i) above in favor of receiving
the severance or other benefits (if any) as may then be established
under the Company's then existing severance and benefits plans and
policies at the time of Employee's termination.
(b) Involuntary Termination Following A Change of
Control. If the Employee's employment with the Company terminates
as a result of an Involuntary Termination at any time
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within twelve (12) months after a Change of Control, then Employee
shall be entitled to the following severance benefits:
(i) the greater of (a) Employee's remaining term
of employment base salary or (b) eighteen (18) months of base
salary, payable in a lump sum within thirty (30) days of Employee's
Involuntary Termination;
(ii) all stock options granted by the Company to
the Employee prior to the Change of Control shall become fully
vested and exercisable as of the date of the termination to the
extent such stock options are outstanding and unexercisable at the
time of such termination and all stock subject to a right of
repurchase by the Company (or its successor) that was purchased
prior to the Change of Control shall have such right of repurchase
lapse with respect to all of the shares; and
(iii) the same level of health (i.e., medical,
vision and dental) coverage and benefits as in effect for the
Employee on the day immediately preceding the day of the Employee's
termination of employment; provided, however, that (i) the Employee
constitutes a qualified beneficiary, as defined in Section
4980B(g)(1) of the Internal Revenue Code of 1986, as amended; and
(ii) Employee elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA.
The Company shall continue to provide Employee with health coverage
until the earlier of (i) the date Employee is no longer eligible to
receive continuation coverage pursuant to COBRA, or (ii) twelve
(12) months from the termination date.
(c) Accrued Wages and Vacation; Expenses. Without
regard to the reason for, or the timing of, Employee's termination
of employment: (i) the Company shall pay the Employee any unpaid
base salary due for periods prior to the Termination Date; (ii) the
Company shall pay the Employee all of the Employee's accrued and
unused vacation through the Termination Date; and (iii) following
submission of proper expense reports by the Employee, the Company
shall reimburse the Employee for all expenses reasonably and
necessarily incurred by the Employee in connection with the
business of the Company prior to the Termination Date. These
payments shall be made promptly upon termination and within the
period of time mandated by law.
5. Limitation on Payments. In the event that the severance
and other benefits provided for in this Agreement or otherwise
payable to the Employee (i) constitute "parachute payments" within
the meaning of Section 280G of the Code, and (ii) would be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then Employee's benefits under this Agreement shall be
either
(a) delivered in full, or
(b) delivered as to such lesser extent which would
result in no portion of such benefits being subject to the Excise
Tax,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Employee on an after-tax basis, of
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the greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under Section 4999 of the
Code.
Unless the Company and the Employee otherwise agree in
writing, any determination required under this Section shall be
made in writing by the Company's independent public accountants
(the "Accountants"), whose determination shall be conclusive and
binding upon the Employee and the Company for all purposes. For
purposes of making the calculations required by this Section, the
Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Section 280G and 4999
of the Code. The Company and the Employee shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this Section.
6. Successors.
(a) Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially
all of the Company's business and/or assets shall assume the
Company's obligations under this Agreement and agree expressly to
perform the Company's obligations under this Agreement in the same
manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and/or assets which executes
and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) Employee's Successors. Without the written consent
of the Company, Employee shall not assign or transfer this
Agreement or any right or obligation under this Agreement to any
other person or entity. Notwithstanding the foregoing, the terms of
this Agreement and all rights of Employee hereunder shall inure to
the benefit of, and be enforceable by, Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
7. Notices.
(a) General. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of
the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of
its Secretary.
(b) Notice of Termination. Any termination by the
Company for Cause or by the Employee as a result of a voluntary
resignation or an Involuntary Termination shall be
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communicated by a notice of termination to the other party hereto
given in accordance with this Section. Such notice shall indicate
the specific termination provision in this Agreement relied upon,
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so
indicated, and shall specify the Termination Date (which shall be
not more than 30 days after the giving of such notice). The
failure by the Employee to include in the notice any fact or
circumstance which contributes to a showing of Involuntary
Termination shall not waive any right of the Employee hereunder or
preclude the Employee from asserting such fact or circumstance in
enforcing his rights hereunder.
8. Arbitration.
(a) Any dispute or controversy arising out of, relating
to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination
thereof, shall be settled by binding arbitration to be held in
Santa Xxxxx County, California, in accordance with the National
Rules for the Resolution of Employment Disputes then in effect of
the American Arbitration Association (the "Rules"). The arbitrator
may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court having
jurisdiction.
(b) The arbitrator(s) shall apply California law to the
merits of any dispute or claim, without reference to conflicts of
law rules. The arbitration proceedings shall be governed by
federal arbitration law and by the Rules, without reference to
state arbitration law. Employee hereby consents to the personal
jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are
participants.
(c) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION,
WHICH DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING
ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION,
CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED
TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF
THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND
IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
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(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY
FEDERAL, STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF
1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS
ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER
LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT
DISCRIMINATION.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be
required to mitigate the amount of any payment contemplated by this
Agreement, nor shall any such payment be reduced by any earnings
that the Employee may receive from any other source.
(b) Waiver. No provision of this Agreement may be
modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Employee and by
an authorized officer of the Company (other than the Employee). No
waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall
be considered a waiver of any other condition or provision or of
the same condition or provision at another time.
(c) Integration. This Agreement and any outstanding
stock option agreements referenced herein represent the entire
agreement and understanding between the parties as to the subject
matter herein and supersede all prior or contemporaneous
agreements, whether written or oral, with respect to this Agreement
and any stock option agreement.
(d) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by
the internal substantive laws, but not the conflicts of law rules,
of the State of California.
(e) Severability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision hereof, which
shall remain in full force and effect.
(f) Employment Taxes. All payments made pursuant to
this Agreement shall be subject to withholding of applicable income
and employment taxes.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.
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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/ XXXX XXXXXX
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Title: VP and CFO
EMPLOYEE: /S/XXXX X. XXXXXXX
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Signature
XXXX X. XXXXXXX
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Printed Name
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