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As filed with the Securities and Exchange Commission on May 20, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ADVANCED ENERGY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0846841
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address, including zip code, of principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
RICHARD P. BECK
ADVANCED ENERGY INDUSTRIES, INC.
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(970) 221-4670
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
CARISSA C. W. COZE
THELEN, MARRIN, JOHNSON & BRIDGES
TWO EMBARCADERO CENTER, 21ST FLOOR
SAN FRANCISCO, CA 94111-3995
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001
per value............... 200,000 shares $7.75 $1,550,000 $534.49
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</TABLE>
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(1) The maximum number of shares of Common Stock to be offered under the
Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as amended.
The above calculation is based on the average of the reported high and
low prices of the Common Stock on the Nasdaq National Market on May 16,
1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be or have been sent or given to participants in the Employee Stock
Purchase Plan (the "Plan") as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act").
Such documents are not submitted to the Securities and Exchange Commission
herewith in accordance with the Note to Part I of Form S-8, but (together
with the documents incorporated by reference herein pursuant to Item 3 of
Part II, below) shall constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Item 1. PLAN INFORMATION
See above.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
See above.
I-1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
by Advanced Energy Industries, Inc. (the "Company") are incorporated by
reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the Annual Report referred to in (a) above;
and
(c) The description of the Company's common stock, $0.001 par value,
contained in the Company's registration statement on Form 8-A filed under the
Exchange Act on October 12, 1995, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing (except that no document shall be deemed to be incorporated by
reference herein if such document is filed after the filing of a
post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters securities then remaining
unsold).
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law ("GCL"), the
Company's Restated Certificate of Incorporation, as amended (the
"Certificate"), provides that no director of the Company shall be personally
liable to the Company or any stockholder of the Company for monetary damages
for breach of fiduciary duty as a director, except for liability: (i) for any
breach of the duty of loyalty to the Company or its stockholders; (ii) for
acts or omissions not in good faith or involve intentional misconduct or a
knowing violation of the law; (iii) arising from payment of dividends or
approval of a stock purchase in violation of Section 174 of the GCL; or (iv)
for any action from which the director derived an improper personal benefit.
While the Certificate provides protection from awards for monetary damages
for breaches of the duty of care, it does not eliminate the director's duty
of care. Accordingly, the Certificate will not affect the availability of
equitable remedies, such as an injunction, based on a director's breach of
the duty of care. The provisions of the Certificate described above apply to
officers of the Company only if they are directors of the Company and are
acting in their capacity as directors, and does not apply to officers of the
Company who are not directors.
II-1
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In addition, the Company's By-Laws provide that the Company shall
indemnify its Executive Officers (as defined in Rule 3b-7 promulgated under
the Securities Exchange Act of 1934, as amended) and directors, and any
employee who serves as an Executive Officer or director of any corporation at
the Company's request, to the fullest extent permitted under and in
accordance with the GCL; provided, however, that the Company may modify the
extent of such indemnification by individual contracts with its Executive
Officers and Directors; and, provided further, that the Company shall not be
required to indemnify any Executive Officer or director in connection with
any proceeding (or part thereof) initiated by such person unless; (i) such
indemnification is expressly required to be made by law; (ii) the proceeding
was authorized by the directors of the Company; (iii) such indemnification is
provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under the GCL; or (iv) such indemnification is required
to be made under the By-Laws of the Company. Under the GCL, directors and
officers as well as employees and individuals may be indemnified against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation as a derivative action) if they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
Item 8. EXHIBITS
Number Exhibit
4.1 Company's Restated Certificate of Incorporation*
4.2 Company's By-laws*
5 Opinion of Counsel
24.1 Consent of Counsel (included in Exhibit 5)
24.2 Consent of Independent Accountants
25 Powers of Attorney (See Pages II-4 and II-5)
* Incorporated by reference to the Company's registration statement
on Form S-1 dated September 20, 1995, as amended.
Item 9. UNDERTAKINGS
(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:
(iii) 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.
II-2
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(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 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
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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 Fort Collins, State of Colorado, on this 17th day
of May, 1996.
Advanced Energy Industries, Inc.,
a Delaware corporation
By: /s/ Richard P. Beck
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Name: Richard P. Beck
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Title: Vice President and Chief
Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Douglas S.
Schatz, G. Brent Backman and Richard P. Beck, and each of them severally,
acting alone and without the other, his true and lawful attorney-in-fact with
authority to execute in the name of each such person, and to file with the
Securities and Exchange Commission, together with any exhibits thereto and
other documents therewith, any and all amendments (including without
limitation post-effective amendments) to this registration statement, and to
sign any registration statement for the same offering covered by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act, necessary or advisable to enable the
Registrant to comply with the Securities Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such changes in this registration statement as the
aforesaid attorney-in-fact deems appropriate.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
/s/ Douglas S. Schatz
Date: May 17, 1996 Douglas S. Schatz
President and Chief Executive
Officer and Director
(Principal Executive Officer)
II-4
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/s/ Richard P. Beck
Date: May 17, 1996 Richard P. Beck
Vice President and Chief
Financial Officer and Director
(Principal Financial and Accounting
Officer)
/s/ G. Brent Backman
Date: May 17, 1996 G. Brent Backman
Director
/s/ Elwood Spedden
Date: May 17, 1996 Elwood Spedden
Director
/s/ Jon D. Tompkins
Date: May 17, 1996 Jon D. Tompkins
Director
II-5
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EXHIBIT INDEX
SEQUENTIAL
NUMBER EXHIBIT PAGE NUMBER
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4.1 Company's Restated Certificate of
Incorporation* --
4.2 Company's By-laws* --
5 Opinion of Counsel
24.1 Consent of Counsel (included in
Exhibit 5)
24.2 Consent of Independent Accountants
25 Powers of Attorney (See Pages II-4
and II-5) --
* Incorporated by reference to the Company's registration statement on
Form S-1 dated September 20, 1995, as amended.
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[LETTERHEAD]
May 16, 1996
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Ladies and Gentlemen:
We have acted as counsel for Advanced Energy Industries, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-8 relating to the issuance and sale of
shares of common stock, $0.001 par value, of the Company ("Common Stock")
pursuant to the Company's Employee Stock Purchase Plan (the "Plan")
Please be advised that we are of the opinion that the Common Stock to be
originally issued, offered and sold by the Company, when issued in the manner
contemplated by the Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement on Form S-8. Except as stated
above, without our prior written consent, this opinion may not be furnished
or quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
THELEN, MARRIN, JOHNSON & BRIDGES
JLM/MLJ
SF #145352
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[Letterhead of Arthur Andersen LLP]
Exhibit 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 21,
1996 incorporated by reference in Advanced Energy Industries, Inc. Form 10-K
for the year ended December 31, 1995, and to all references to our Firm
included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
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Arthur Andersen LLP
Denver, Colorado,
May 20, 1996.
